This rule amends the Executive Office for Immigration Review (EOIR) regulations relating to the organization of the Office of the Chief Immigration Judge (OCIJ) to allow the Director of EOIR to designate or select, with the approval of the Attorney General, temporary immigration judges.

DATES:

Effective Date: This rule is effective July 11, 2014. Written comments must be submitted on or before September 9, 2014. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight eastern time at the end of that day.

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personally identifiable information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifiable information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment. You must also locate all the personally identifiable information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personally identifiable information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information Contact” paragraph.

II. Background

The Executive Office for Immigration Review (EOIR) administers the nation's immigration court system. EOIR primarily decides whether foreign-born individuals who are charged by the Department of Homeland Security (DHS) with violating immigration law pursuant to the Immigration and Nationality Act (INA) should be ordered removed from the United States, or should be granted relief or protection from removal and be permitted to remain in the United States.1 EOIR is also responsible for conducting other immigration-related adjudications, including hearings regarding custody or bond determinations made by DHS.

1 Generally, cases commence before an immigration judge when DHS files a charging document against an alien with the immigration court. See 8 CFR 1003.14(a).

To make these critical determinations, EOIR's Office of the Chief Immigration Judge (OCIJ) has approximately 250 immigration judges who conduct administrative court proceedings, in 59 immigration courts nationwide. EOIR's appellate component, the Board of Immigration Appeals (Board), primarily decides appeals of immigration judge decisions. The Board is the highest administrative tribunal for interpreting and applying U.S. immigration law. EOIR is a component of the Department of Justice (DOJ or Department).

The immigration judges are attorneys appointed by the Attorney General as administrative judges qualified to conduct the cases assigned to them. They are subject to the supervision of the Attorney General in performing their prescribed duties, but, subject to the applicable governing standards, exercise independent judgment and discretion in considering and determining the cases before them. See INA sec. 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), (d). Decisions of the immigration judges are subject to review by the Board pursuant to 8 CFR 1003.1(a)(1) and (d)(1); in turn, the Board's decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review.

III. Proposal for Designation of Temporary Immigration Judges

EOIR's mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. In order to more efficiently accomplish the agency's commitment to promptly decide the large volume of immigration cases, this rule amends the agency's regulations relating to the organization of OCIJ to allow the Director of EOIR to designate or select, with the approval of the Attorney General, one or more temporary immigration judges.

EOIR is currently managing the largest caseload the immigration court system has ever seen. Due to attrition in the immigration judge corps and continuing budgetary restrictions, the Department believes that the designation of temporary immigration judges will provide an appropriate means of flexibility in responding to the increased challenges facing the immigration courts.

An issue of continuing concern to the Department is EOIR's pending caseload in the immigration courts. At the end of FY 2013, there were 350,330 cases pending at the immigration courts, marking an increase of 22,901 cases pending above those at the end of FY 2012. See 2013 EOIR Stat. Y.B. W1.2 Of those, 38 percent were received prior to FY 2012. Id. As DHS continues its obligation to enforce the immigration laws of the United States, EOIR anticipates that its caseload will continue to increase, especially as DHS continues to use new technologies to increase efficiencies in the identification, apprehension, detention, and removal of aliens.

2 EOIR's FY2013 Statistical Year Book, prepared by EOIR's Office of Planning and Technology, is available at http://www.justice.gov/eoir/statspub/fy13syb.pdf.

Even without a continually increasing caseload, the dockets currently handled by the immigration judge corps are substantial. At the end of FY 2013, 350,330 pending cases were being handled by approximately 250 immigration judges, averaging 1,401 matters per immigration judge.3 By comparison, a recent study indicated that judges for the Board of Veterans' Appeals hear approximately 700 cases each year per judge and Social Security Administration administrative law judges decide approximately 500 cases each year per judge.4 There is a particular need to assist EOIR's larger courts, namely New York, NY; Los Angeles, CA; San Antonio, TX; San Francisco, CA; Pearsall, TX, which received 43 percent of all asylum applications (15,661) filed with the immigration courts in FY 2013. See 2013 EOIR Stat. Y.B. J3. EOIR must be poised to handle not only its routine workload, but also emergency or special situations, such as a sudden influx of asylum seekers.

3 This average does not take into account attrition in the immigration judge corps during FY 2013 or the difference in docket size geographically or by docket type (i.e., detained, non-detained, juvenile, and institutional hearing program).

In response to increases in immigration court workload and DOJ priorities, EOIR undertook a major initiative that resulted in the hiring of more than 50 new immigration judges during FY 2010 and through the second quarter of FY 2011. However, as of June 2014, attrition and budgetary restrictions resulted in a net increase of only 13 immigration judges since FY 2009. The Department believes that the designation of temporary immigration judges will provide an appropriate means of responding to the increasing pending caseload in the immigration courts. While the designation of temporary immigration judges is not a substitute for the ongoing need to hire additional permanent immigration judges, designation of temporary immigration judges should improve EOIR's ability to adjudicate cases in a timely manner.

OCIJ provides overall program direction, articulates policies and procedures, and establishes priorities for the immigration courts. The Chief Immigration Judge will continue to monitor caseload volume, trends, and geographic concentration and will adjust resources accordingly. Where appropriate, temporary immigration judges could be assigned to a discrete category of cases, such as motions and bond proceedings, freeing up permanent immigration judge time to adjudicate more complicated removal cases and increase the number of matters EOIR could bring to a final disposition. From FY 2009 to FY 2013, approximately 70 percent of the cases before the immigration courts were completed without the alien applying for relief from removal. Bond-related matters, however, have increased by 12 percent from FY 2009 (51,584) to FY 2013 (57,699), along with a 104 percent increase in motions for change of venue and a 161 percent increase in case transfers over the same period. See 2013 EOIR Stat. Y.B. 11, A7.

However, to ensure the flexibility necessary to address record caseloads and to handle exigent circumstances, this rule would not limit the assignment of temporary immigration judges in the type of cases they may adjudicate, except as otherwise provided by the Chief Immigration Judge, per the authority granted in 8 CFR 1003.9 and in this interim rule. As discussed below, the Chief Immigration Judge will be responsible for ensuring that each temporary immigration judge has the necessary training, experience, and skills to properly adjudicate the matters assigned.

This rule amends EOIR's regulations at 8 CFR 1003.10 by adding a new paragraph (e). The amendments will allow the Director of EOIR to designate or select, with the approval of the Attorney General, former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms. Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six-month terms. The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience. In order to allow greater flexibility, the rule does not specify particular titles or job descriptions for Department attorneys with 10 years of immigration law experience. Accordingly, attorneys at the Department with 10 years of immigration law experience may qualify for designation as temporary immigration judges.

In evaluating candidates for designation as a temporary immigration judge, EOIR anticipates that it will generally employ the same selection criteria and process it applies with respect to the hiring of permanent immigration judges. Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures. Designation of such individuals will help ensure efficiency in the adjudication of removal cases and preserve the integrity of the overall process, without sacrificing fairness and due process. As is the case for all immigration judges, EOIR provides a process for the filing and consideration of complaints.

IV. Training for Temporary Immigration Judges

Among EOIR's 2008-2013 strategic goals and objectives was the goal to provide for a workforce that is skilled, diverse, and committed to excellence, and that exhibits the highest standards of integrity. It is important that those who appear before EOIR's tribunals have trust in the agency and in the work that it does. EOIR is committed to providing training to new and experienced immigration judges, including temporary immigration judges.

EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individual's training and experience. Each judge will be supervised by the Assistant Chief Immigration Judge assigned to the local immigration court where the temporary immigration judge will be assigned. The Assistant Chief Immigration Judge will be available as an additional source of assistance and guidance, and will be responsible for conducting periodic reviews of the temporary immigration judge's performance and reporting his or her findings to the Chief Immigration Judge.

EOIR also ensures that immigration judges receive continuing education. For instance, in addition to new immigration judge training, EOIR held mandatory Immigration Judge Legal Training Conferences in 2009 and 2010 and Immigration Judge Legal Training Programs in 2011, 2012, and 2013. This training covered many substantive immigration legal issues, including those relating to asylum, criminal matters, bond, adjustment of status, and a variety of other topics. The training also provided information on subjects ranging from immigration cases involving unaccompanied alien children and respondents with mental competency issues to immigration fraud and courtroom management. Immigration Judge Legal Training Programs were recorded and will be available to temporary immigration judges.

OCIJ maintains an Immigration Judge Benchbook. The Benchbook includes scripts, introductory guides, checklists, worksheets, and sample orders as well as links to a number of immigration-related legal resources. OCIJ also maintains an Immigration Court Practice Manual, a comprehensive guide that sets forth uniform procedures, recommendations, and requirements for practice before the immigration courts. Additional resources for immigration judges are available through EOIR's virtual law library, which includes BIA decisions, circuit court decisions, regulations, and country-specific information.

Given the many training options and resources available to immigration judges, EOIR will provide training as necessary for the performance of each temporary immigration judge's assigned duties.

V. Public Comments

This rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because, as an internal delegation of authority, it relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(b). The Department is nonetheless promulgating this rule as an interim rule with opportunity for post-promulgation comment. This will provide the public with an opportunity for comment before the Department issues a final rule on these matters.

VI. Regulatory RequirementsA. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), “[w]henever an agency is required by section 553 of [the RFA], or any other law, to publish general notice of proposed rulemaking for any proposed rule . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” 8 U.S.C. 603(a). Such analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). Because this is a rule of internal agency organization and therefore is exempt from notice and comment rulemaking, no RFA analysis under 5 U.S.C. 603 is required for this rule.

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning and Review)

The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and the Office of Management and Budget has concurred in this determination. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects, distributive impacts, and equity. The benefits of this interim rule include providing the Department with an appropriate means of responding to current and future increases or surges in the number, size, or type of immigration court matters. The public will benefit from the designation of temporary immigration judges because such designations will help EOIR better accomplish its mission of adjudicating cases in a timely manner. Temporary immigration judges will receive appropriate training and supervision for this role. This rule will not have a substantial economic impact on Department functions to the extent that individuals who may act as temporary immigration judges are already employed by the Department. The Department does not foresee any burdens to the public or the Department.

E. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant preparation of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this interim rule because there are no new or revised recordkeeping or reporting requirements.

H. Congressional Review Act

This action pertains to agency management and personnel and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (CRA) (Subtitle E of the Small Business Regulatory Enforcement Fairness Act (SBREFA)), 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

(e) Temporary immigration judges. (1) Designation. The Director is authorized to designate or select temporary immigration judges as provided in this paragraph (e).

(i) The Director may designate or select, with the approval of the Attorney General, former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to serve as temporary immigration judges for renewable terms not to exceed six months. Administrative law judges from other Executive Branch agencies must have the consent of their agencies to be designated as temporary immigration judges.

(ii) In addition, the Director may designate, with the approval of the Attorney General, Department of Justice attorneys with at least 10 years of legal experience in the field of immigration law to serve as temporary immigration judges for renewable terms not to exceed six months.

(2) Authority. A temporary immigration judge shall have the authority of an immigration judge to adjudicate assigned cases and administer immigration court matters, as provided in the immigration laws and regulations, subject to paragraph (e)(3) of this section.

(3) Assignment of temporary immigration judges. The Chief Immigration Judge is responsible for the overall oversight and management of the utilization of temporary immigration judges and for evaluating the results of the process. The Chief Immigration Judge shall ensure that each temporary immigration judge has received a suitable level of training to enable the temporary immigration judge to carry out the duties assigned.

We are adopting a new airworthiness directive (AD) for certain Rolls-Royce plc (RR) RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. This AD requires modification of the engine by removing an electronic engine control (EEC) incorporating EEC software standard A14 or earlier and installing an EEC eligible for installation. This AD was prompted by an uncontained multiple turbine blade failure on an RR RB211 Trent 772B turbofan engine. We are issuing this AD to prevent failure of the intermediate-pressure (IP) turbine disk drive arm or burst of the high-pressure turbine disk, which could lead to uncontained engine failure and damage to the airplane.

DATES:

This AD becomes effective August 15, 2014.

ADDRESSES:

For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; or Web site: https://www.aeromanager.com. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0876; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on March 3, 2014 (79 FR 11722). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

An operator of an A330 aeroplane fitted with RR Trent 772B engines experienced an engine uncontained multiple turbine blade failure. Investigation results showed that High-Pressure/Intermediate-Pressure (HP/IP) oil vent tubes may be affected by carbon deposit and may also be damaged by their outer heat shields, which in this case led to combustion inside the tube. The consequent chain of events resulted in an engine internal fire which caused the failure of the IP turbine disc drive arm.

This condition, if not corrected, could lead to uncontained multiple turbine blade failures or an HP/IP turbine disc burst, possibly resulting in damage to, and reduced control of, the aeroplane.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

Request To Modify Description of Failure Mode

RR requested that we define the failure mode as IP turbine disc drive arm failure and multiple IP turbine blade release to be consistent with descriptions in the RR service bulletin and the European Aviation Safety Agency (EASA) AD.

We disagree. EASA AD 2013-0190, dated August 20, 2013, states that the failure mode is multiple turbine blade failures or HP/IP turbine disc burst. We did not change this AD.

Request That FAA Require the Same Compliance Date as the EASA AD

RR requested that we modify the compliance date to be consistent with the compliance date required in EASA AD 2013-0190, dated August 20, 2013.

We disagree. EASA AD 2013-0190, dated August 20, 2013 required compliance by December 31, 2018. We proposed compliance at next shop visit or December 31, 2018, whichever comes first, to achieve more timely mitigation of the unsafe condition. We did not change this AD.

Conclusion

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

Costs of Compliance

We estimate that this AD affects about 72 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 hour per engine to comply with this AD. The average labor rate is $85 per hour. There are no required parts. Based on these figures, we estimate the cost of this AD on U.S. operators to be $6,120.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD was prompted by an uncontained multiple turbine blade failure on an RR RB211 Trent 772B turbofan engine. We are issuing this AD to prevent failure of the intermediate-pressure turbine disc drive arm or burst of the high-pressure turbine disk, which could lead to uncontained engine failure and damage to the airplane.

(e) Actions and Compliance

After the effective date of this AD, at the next engine shop visit or by December 31, 2018, whichever occurs first, modify the engine by removing any electronic engine control (EEC) that incorporates EEC software standard A14 or earlier and installing an EEC eligible for installation.

(f) Installation Prohibition

After modification of an engine as required by paragraph (e) of this AD, do not install an EEC with software standard A14 or earlier into that engine.

(g) Definitions

(1) For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.

(2) For the purpose of this AD, an EEC “eligible for installation” is any EEC that does not contain software standard A14 or earlier.

(h) Credit for Previous Actions

If before the effective date of this AD you removed from an engine any EEC that had EEC software standard A14 or earlier and your engine no longer has an EEC with software standard A14 or earlier, you have met the requirements of this AD.

(i) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(2) Refer to MCAI European Aviation Safety Agency AD 2013-0190, dated August 20, 2013, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2013-0876.

(3) RR Alert Service Bulletin No. RB.211-73-AG829, dated April 18, 2012, which is not incorporated by reference in this AD, can be obtained from Rolls-Royce plc, using the contact information in paragraph (j)(4) of this AD.

(5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

We are adopting a new airworthiness directive (AD) for certain Pratt & Whitney Canada Corp. (P&WC) PW120, PW121, PW121A, PW124B, PW127, PW127E, PW127F, PW127G, and PW127M turboprop engines. This AD requires removal of the O-ring seal from the fuel manifold fitting. This AD was prompted by reports of fuel leaks at the interface between the fuel manifold and the fuel nozzle that resulted in engine fire. We are issuing this AD to prevent in-flight fuel leakage, which could lead to engine fire, damage to the engine, and damage to the airplane.

DATES:

This AD becomes effective August 15, 2014.

ADDRESSES:

For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone: 800-268-8000; fax: 450-647-2888; Web site: www.pwc.ca. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-1059; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on March 21, 2014 (79 FR 15707). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

There have been reported incidences of fuel leaks at the interface between the flexible fuel manifold and the fuel nozzle. On occasion, these events resulted in an engine fire on PW100 series engine installations. The data indicates that nearly all of the subject manifold fuel leaks were caused by inadequate B-nut torque application during installation, after maintenance work was performed on the fuel nozzle/manifold.

Sealing of the fitting connections between the fuel manifolds and the fuel nozzle adapters is achieved through conical metal-to-metal surface seating. An additional O-ring seal on the fitting was installed to arrest any fuel leak past the conical sealing surfaces. In-service experience has indicated that leakage past the sealing surfaces, as a result of improper torquing during installation of the manifold, may not be immediately evident until the failure of the O-ring seal allows the fuel to leak into the nacelle area.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comment received.

Request To Mandate Incorporation of Service Bulletins

UTair Aviation JSC requested that we mandate incorporation of P&WC Service Bulletins (SBs) PW100-72-21841, Revision No. 1, dated November 29, 2013; and PW100-72-21848, Revision No. 1, dated November 15, 2013, in the AD. The commenter suggested that incorporation by reference of these SBs would improve safety compared to the compliance proposed in the NPRM (79 FR 15707, March 21, 2014).

We disagree. We note that prior to implementation of these SBs, an operator would need to remove the affected O-ring seals, which would fulfill the requirements of this AD. We do not find that requiring accomplishing these service bulletins through incorporation by reference in this AD is necessary. We did not change this AD.

Conclusion

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

Costs of Compliance

We estimate that this AD affects about 150 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2.5 hours per engine to perform the inspection or replacement required by this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $31,875.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD was prompted by reports of fuel leaks at the interface between the fuel manifold and the fuel nozzle that resulted in engine fire. We are issuing this AD to prevent in-flight fuel leakage, which could lead to engine fire, damage to the engine, and damage to the airplane.

(e) Actions and Compliance

Unless already done, during the next opportunity when the affected subassembly is accessible, but no later than 18 months after the effective date of this AD, remove the O-ring seal from the fuel manifold fitting.

(f) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(2) Refer to MCAI Transport Canada AD CF-2013-29, dated October 4, 2013, for related information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2013-1059.

(3) P&WC Service Bulletin PW100-72-21803, Revision No. 4, dated February 8, 2012, which is not incorporated by reference in this AD, can be obtained from Pratt & Whitney Canada, using the contact information in paragraph (g)(4) of this AD.

(5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

We are rescinding Airworthiness Directive (AD) 2013-22-23 for AERMACCHI S.p.A. Models F.260, F.260B, F.260C, F.260D, F.260E, F.260F, S.208, and S.208A airplanes equipped with a Lycoming O-540, IO-540, or AEIO-540 (depending on the airplane model) wide cylinder flange engine with a front crankcase mounted propeller governor. AD 2013-22-23 resulted from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. We issued the AD to detect and correct improper position of the set screw, which could lead to complete loss of engine oil pressure and result in emergency landing. Since we issued AD 2013-22-23, we have determined the unsafe condition does not exist specific to the airplane design features.

DATES:

This AD is effective July 11, 2014. We must receive comments on this AD by August 25, 2014.

ADDRESSES:

You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0939; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

AD 2013-22-23 (78 FR 68357; November 14, 2013) was based on mandatory continuing airworthiness action (MCAA) by the State of Design of these products. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2012-0228R1, dated November 13, 2012, to address the above situation. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0939.

Since we issued AD 2013-22-23 (78 FR 68357; November 14, 2013), we determined the unsafe condition does not exist specific to the airplane design features. We will evaluate this condition at the engine level, and we may take rulemaking action in the future.

FAA's Determination

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is specific to the engine design feature rather than the specific airplane design feature. We will evaluate this condition further and may take rulemaking action in the future.

Since we issued AD 2013-22-23 (78 FR 68357; November 14, 2013), we determined the unsafe condition does not exist specific to the airplane design features. We will evaluate this condition at the engine level, and we may take rulemaking action in the future. Therefore, we find that notice and opportunity to comment prior to adoption of this rule are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

Although this is a final rule that was not preceded by notice and an opportunity for public comment, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2013-0939 and Directorate Identifier 2013-CE- 043-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD applies to the following AERMACCHI S.p.A. airplanes that are certificated in any category:

(1) Models F.260, F.260B, F.260C, F.260D, F.260E, and F.260F airplanes, all serial numbers, that are equipped with either a Lycoming O-540, IO-540, or AEIO-540 wide cylinder flange engine (identified by the suffix “A” or “E” in the serial number) with a front crankcase mounted propeller governor; and

(2) Models S.208 and S.208A airplanes, all serial numbers, that are equipped with a Lycoming O-540 wide cylinder flange engine (identified by the suffix “A” or “E” in the serial number) with a front crankcase mounted propeller governor.

We are superseding emergency airworthiness directive (AD) 2014-12-52 for all Honeywell International Inc. TFE731-4, -4R, -5AR, -5BR, -5R, -20R, -20AR, -20BR, -40, -40AR, -40R, -40BR, -50R, and -60 turbofan engines. Emergency AD 2014-12-52 was sent previously to all known U.S. owners and operators of these engines. AD 2014-12-52 required, before further flight, a review of the engine logbook maintenance records to determine if any affected engines are installed. AD 2014-12-52 also prohibited operation of an airplane with two or more affected engines that have 2nd stage low-pressure turbine (LPT2) blades with less than 250 operating hours since new. This AD retains the requirements of AD 2014-12-52 and clarifies the intent of the mandatory requirements. This AD was prompted by reports of LPT2 blade separations. We are issuing this AD to prevent LPT2 blade failure, multiple engine in-flight shutdowns, and damage to the airplane.

DATES:

This AD is effective July 28, 2014.

We must receive comments on this AD by August 25, 2014.

ADDRESSES:

You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034-2802; phone: (800) 601-3099; Internet: http://www.myaerospace.com. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call (781) 238-7125.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0386; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On June 10, 2014, we issued Emergency AD 2014-12-52, which requires, before further flight, a review of the engine logbook maintenance records to determine if any affected engines are installed. Emergency AD 2014-12-52 also required for two-engine airplanes or for three-engine airplanes, that have two or more engines installed with LPT2 blades installed that have less than 250 operating hours since new, remove all affected engines before further flight. Emergency AD 2014-12-52 was sent previously to all known U.S. owners and operators of these TFE731-4, -4R, -5AR, -5BR, -5R, -20R, -20AR, -20BR, -40, -40AR, -40R, -40BR, -50R, and -60 turbofan engines. This action was prompted by reports of LPT2 blade separations. Analysis indicates the presence of casting anomalies at or near the root of the LPT2 blade. This condition, if not corrected, could result in LPT2 blade failure, multiple engine in-flight shutdowns, and damage to the airplane. We are superseding Emergency AD 2014-12-52 to clarify the intent of paragraphs (e) and (f) of this AD.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

AD Requirements

This AD requires, before further flight, a review of the engine logbook maintenance records to determine if any affected engines are installed. If any affected engines are installed, then this AD prohibits operation of an airplane with two or more affected engines that have LPT2 blades with less than 250 operating hours since new.

Differences Between This AD and the Service Information

Paragraphs (e)(2) and (e)(3) of this AD require that certain affected engines be removed before further flight. Honeywell ASB No. TFE731-72-A3792, dated June 5, 2014; ASB No. TFE731-72-A5242, dated June 5, 2014; and ASB No. TFE731-72-A5243, dated June 5, 2014, for airplanes having only one affected engine installed, require no action at this time and may continue operation.

Interim Action

We consider this AD to be an interim action. We anticipate that further AD action will follow.

FAA's Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of compliance requirement before further flight. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0386; Directorate Identifier 2014-NE-09-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Costs of Compliance

We estimate that this AD affects 50 engines installed on airplanes of U.S. registry. We also estimate that it will take about 18 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $0 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $76,500.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD was prompted by reports of LPT2 blade separations. Analysis indicates the presence of casting anomalies at or near the root of the LPT2 blade. We are issuing this AD to prevent LPT2 blade failure, multiple engine in-flight shutdowns, and damage to the airplane.

(e) Compliance

Comply with this AD within the compliance times specified, unless already done.

(1) Before further flight, review engine logbook maintenance records to determine if any engine is installed that has LPT2 blade, P/N 3075424-1, -2, or -3, installed with less than 250 operating hours since new on the blade.

(2) For two-engine airplanes that have two engines with LPT2 blades installed that have less than 250 operating hours since new, remove all affected engines before further flight.

(3) For three-engine airplanes that have two or more engines with LPT2 blades installed that have less than 250 operating hours since new, remove all affected engines before further flight.

(4) After the effective date of this AD, do not install any engine that has installed in it LPT2 blades, P/N 3075424-1, -2, or -3, that have less than 250 operating hours since new.

(f) Special Flight Permit

Special flight permits are permitted for one over-land ferry flight to a maintenance facility where engines can be removed.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(2) Honeywell International Alert Service Bulletin (ASB) No. TFE731-72-A3792, dated June 5, 2014; ASB No. TFE731-72-A5242, dated June 5, 2014; and ASB No. TFE731-72-A5243, dated June 5, 2014, which are not incorporated by reference in this AD, can be obtained from Honeywell International Inc., using the contact information in paragraph (h)(3) of this AD.

(4) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

This rule amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective July 11, 2014. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 11, 2014.

ADDRESSES:

Availability of matter incorporated by reference in the amendment is as follows:

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability—All SIAPs are available online free of charge. Visit nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

Conclusion

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).

Issued in Washington, DC, on June 6, 2014.John Duncan,Director, Flight Standards Service.Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES1. The authority citation for part 97 continues to read as follows:Authority:

This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective July 11, 2014. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 11, 2014.

ADDRESSES:

Availability of matters incorporated by reference in the amendment is as follows:

4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Availability—All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit http://www.nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

Conclusion

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR part 97

Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).

Issued in Washington, DC, on June 6, 2014.John Duncan,Director, Flight Standards Service.Adoption of the Amendment

As part of the June 20, 2014 Federal Register (79 FR 35282) final rule amendatory text, the Department erroneously removed “22 CFR 34.7(a)(7)”, which does not exist. The Department's intent, however, was to remove 22 CFR 34.10(a)(7), for the reasons explained in the prior document. This document corrects that error.

The Coast Guard is establishing a temporary special local regulation for the waters of the Tennessee River beginning at mile marker 256.0 and ending at mile marker 257.5, extending bank to bank. This zone is necessary to protect participants of the Renaissance Man Triathlon during the swim portion of the event. Entry into this area is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or designated representative.

DATES:

This rule is effective from 5:00 a.m. to 10:30 a.m. July 13, 2014.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2014-0277]. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call Petty Officer Chad Phillips, Marine Safety Detachment Nashville, at (615) 736-5421 or email at chad.e.phillips@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:Table of AcronymsBNM Broadcast Notices to MarinersCOTP Captain of the PortDHS Department of Homeland SecurityNPRM Notice of Proposed RulemakingA. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The Coast Guard received notice on April 7, 2014 that the Renaissance Man Triathlon is planned to take place on July 13, 2014. The swimming portion of this event will take place on the Tennessee River from mile 256.0 to mile 257.5. Upon reviewing the details of this event, the Coast Guard determined that a special local regulation is necessary during the event's swimming portion, taking place on the Tennessee River. Completing the full NPRM process is contrary to the public interest as it would delay the additional safety measures necessary to protect participants and event personnel from the possible marine hazards present during the swimming portion of this event. The event has been advertised and is planned by the local community. Delaying the special local regulation would also unnecessarily interfere with the planned event and with the potential to affect contractual obligations of the event sponsors.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Providing a full 30 days' notice and delaying the effective date for this special local regulation would be impracticable because immediate action is necessary to protect event participants from the possible marine hazards present during this swimming event.

B. Basis and Purpose

The swim portion of the Renaissance Man Triathlon takes place on the Tennessee River from mile markers 256.0 to 257.5. The Coast Guard determined that a temporary special local regulation is needed to protect the 300 participants in the Renaissance Man Triathlon during the swimming portion. The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorizes the Coast Guard to establish and define special local regulations. The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 256.0 and ending at 257.5 to protect the participants in the swimming portion of the Renaissance Man Triathlon. Entry into this area is prohibited unless specifically authorized by the COTP Ohio Valley or designated representative.

C. Discussion of the Final Rule

The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 256.0 and ending at 257.5, during the swimming portion of the Renaissance Man Triathlon. During this event, vessels shall not enter into, depart from, or move within the regulated area without permission from the COTP Ohio Valley or his authorized representative. Persons or vessels requiring entry into or passage through the regulated area must request permission from the COTP Ohio Valley, or a designated representative. Sector Ohio Valley may be contacted on VHF-FM Channel 13 or 16, or 1-800-253-7465. This rule is effective from 5:00 a.m. to 10:30 a.m. July 13, 2014. The COTP Ohio Valley will inform the public through Broadcast Notices to Mariners (BNM) of the enforcement period for the special local regulation as well as any changes in the planned schedule.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

This special local regulation restricts transit on the Tennessee River from mile marker 256.0 through 257.5 and covers a period of five and one half hours, from 5:00 a.m. to 10:30 a.m. on July 13, 2014. Due to its short duration and limited scope, it does not pose a significant regulatory impact. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area or deviated from this regulation. Requests to deviate from this regulation will be considered on a case-by-case basis.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit mile marker 256.0 to 257.5 on the Tennessee River, from 5:00 a.m. to 10:30 a.m. on July 13, 2014. The special local regulation will not have a significant economic impact on a substantial number of small entities because this rule will be in effect for a short period of time. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves establishing a temporary special local regulation to protect the participants in the swimming portion of the Renaissance Man Triathlon on the Tennessee River from mile markers 256.0 to 257.5 for five and one half hour period on one day.

An environmental analysis was performed during the marine event permit process for the swimming event and a checklist and a categorical exclusion determination are not required for this special local regulation.

For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS1. The authority citation for Part 100 continues to read as follows:Authority:

33 U.S.C. 1233.

2. A new temporary § 100.T08-0277 is added to read as follows:§ 100.T08-0277_SpecialLocal Regulation; Tennessee River, Miles 256.0 to 257.5, Florence, TN.

(a) Location. The following area is a regulated area: All waters of the Tennessee River, beginning at mile marker 256.0 and ending at mile marker 257.5.

(b) Effective date. This section is effective from 5:00 a.m. to 10:30 a.m. on July 13, 2014.

(c) Regulations. (1) In accordance with the general regulations in § 100.35 of this part, entry into this area is prohibited unless authorized by the Captain of the Port Ohio Valley or a designated representative.

(2) Persons or vessels requiring entry into or passage through the area must request permission from the Captain of the Port Ohio Valley or a designated representative. U.S. Coast Guard Sector Ohio Valley may be contacted on VHF Channel 13 or 16, or at 1-800-253-7465.

(3) All persons and vessels shall comply with the instructions of the Captain of the Port Ohio Valley and designated U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.

(d) Informational broadcasts. The Captain of the Port Ohio Valley or a designated representative will inform the public through broadcast notice to mariners when the special local regulation is being enforced and if there are changes to the planned schedule and enforcement period for this special local regulation.

The Coast Guard will enforce a Special Local Regulation for the “Music City Triathlon” on the Cumberland River mile marker 190.0 to mile marker 192.0 from 6:00 a.m. until 9:30 a.m. on July 27, 2014. This action is necessary for the safeguard of participants and spectators, including all crews, vessels, and persons on navigable waters during the “Music City Triathlon.” During the enforcement period, entry into, transiting or anchoring in the Regulated Area is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or a designated representative.

DATES:

The regulations in 33 CFR 100.801 will be enforced from 6:00 a.m. until 9:30 a.m. on July 27, 2014.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this notice of enforcement, call Petty Officer Chad Phillips, Coast Guard Marine Safety Detachment Nashville at 615-736-5421, or Chad.e.phillips@uscg.mil.

SUPPLEMENTARY INFORMATION:

The Coast Guard will enforce the Special Local Regulation for the annual “Music City Triathlon” listed in 33 CFR 100.801 Table 1, Sector Ohio Valley, No. 16 on July 27, 2014 from 6:00 a.m. until 9:30 a.m.

Under the provisions of 33 CFR 100.801, entry into the regulated area listed in Table 1, Sector Ohio Valley, No. 16 is prohibited unless authorized by the Captain of the Port or a designated representative. Persons or vessels desiring to enter into or passage through the Special Local Regulation must request permission from the Captain of the Port or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative.

This notice is issued under authority of 5 U.S.C. 552(a), and 33 U.S.C. 1233. In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and Marine Information Broadcasts.

If the Captain of the Port Ohio Valley or Patrol Commander determines that the Special Local Regulation need not be enforced for the full duration stated in this notice of enforcement, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the University Bridge, mile 4.3, across Lake Washington Ship Canal at Seattle, WA. The deviation is necessary to allow King County Metro Transit to perform essential maintenance on the University Bridge. This deviation allows the bridges to remain in the closed position and need not open to marine traffic.

DATES:

This deviation is effective from 10 p.m. on July 11, 2014 to 8 a.m. on July 20, 2014.

ADDRESSES:

The docket for this deviation, [USCG-2014-0525] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The Seattle Department of Transportation has requested a temporary deviation from the operating schedule for the University Bridge, mile 4.3, across the Lake Washington Ship Canal at Seattle, WA. The requested deviation is to allow King County Metro Transit to perform essential maintenance on the University Bridge. The plan is to re-cable all the metro trolley lines on the bridge. To facilitate this maintenance period, the draws of the bridge will be maintained in the closed-to-navigation position on July 11th, 12th, and 13th, 2014 from 10 p.m. to 8 a.m. the following morning, then again on the 18th, 19th, and 20th, 2014 from 10 p.m. to 8 a.m. the following morning. Vessels which do not require bridge openings may continue to transit beneath the bridge during the closure periods. The University Bridge, mile 4.3, provides a vertical clearance of 30 feet in the closed position; clearances are referenced to the mean water elevation of Lake Washington. The current operating schedule for the bridge is set out in 33 CFR 117.1051. The normal operating schedule for the University Bridge states that the bridge need not open from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. Monday through Friday for vessels less than 1000 tons. The normal operating schedule for the bridge also requires one hour advance notification for bridge openings between 11 p.m. and 7 a.m. daily. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

In the Federal Register of April 30, 2014, EPA published a direct final rule amending the regulations that pertain to the labeling of pesticide products and devices intended solely for export. In accordance with the procedures described in the April 30, 2014 Federal Register document, EPA is withdrawing the direct final rule, because the Agency received adverse comments.

DATES:

Effective July 11, 2014 the rule published in the Federal Register of April 30, 2014 (79 FR 24347) (FRL-9909-82) is withdrawn.

A list of potentially affected entities is provided in the April 30, 2014 Federal Register document. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

II. What rule is being withdrawn?

In the April 30, 2014 Federal Register document, EPA amended the labeling regulations for pesticide products and devices intended solely for export to allow placement of required information on collateral labeling attached to a shipping container of such products rather than on the label of each individual product in such a shipment by direct final rule. In accordance with the procedures described in the April 30, 2014 Federal Register document, EPA is withdrawing the direct final rule, because the Agency received adverse comments, copies of which are available in the docket. Elsewhere in this Federal Register, EPA is proposing a rule to seek public comment on the labeling regulations and the issues raised by the adverse comments received.

III. How do I access the docket?

To access the docket, please go to http://www.regulations.gov and follow the online instructions using the docket ID number EPA-HQ-OPP-2009-0607. Additional information about the Docket Facility is also provided under ADDRESSES in the April 30, 2014 Federal Register document. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

IV. Good Cause Finding

EPA finds that there is “good cause” under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to withdraw the rule discussed in this document without prior notice and comment. For this document, notice and comment is impracticable and unnecessary because EPA is under a time limit to publish this withdrawal. It was determined that this document is not subject to the 30-day delay of effective date generally required by 5 U.S.C. 553(d). This withdrawal must become effective prior to the effective date of the rule being withdrawn.

V. Statutory and Executive Order Reviews

This document withdraws regulatory requirements that have not gone into effect. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the rule being withdrawn were discussed in the April 30, 2014 Federal Register document. Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

VI. Congressional Review Act (CRA)

Pursuant to the CRA (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit IV.

In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements contained in the regulations in the Radio Experimentation and Market Trials—Streamlining Rules. The information collection requirements were approved on June 9, 2014 by OMB.

DATES:

The amendments to 47 CFR 2.803(c)(2), published at 78 FR 25138, April 29, 2013, are effective July 11, 2014.

This document announces that on June 9, 2014, OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 2.803(c)(2). The Commission publishes this document to announce the effective date of this rule section. See, In the Matter of Promoting Expanded Opportunities for Radio Experimentation and Market Trials under Part 5 of the Commission's Rules and Streamlining Other Related Rules, ET Docket No. 10-236; and 2006 Biennial Review of Telecommunications Regulations—Part 2 Administered by the Office of Engineering and Technology ET Docket Nos. 06-155, FCC 13-15, 78 FR 25138, April 29, 2013.

Synopsis

As required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on June 9, 2014, for the information collection requirement contained in 47 CFR 2.803(c)(2). Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number.

The OMB Control Number is 3060-0773 and the total annual reporting burdens for respondents for this information collection are as follows:

Frequency of Response: One time reporting requirement and third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 154(i), 302, 303, 303(r), and 307.

Total Annual Burden: 5,000 hours.

Total Annual Costs: N/A.

Nature and Extent of Confidentiality: There is no need for confidentiality.

Privacy Act Impact Assessment: N/A.

Needs and Uses: On January 31, 2013, the Commission adopted a Report and Order, ET Docket Nos. 10-236 and 06-155, FCC 13-15, which revised the rules in § 2.803(c)(2) to include limited marketing activities prior to equipment authorization.

The Commission has established rules for the marketing of radio frequency (RF) devices prior to equipment authorization under guidelines in 47 CFR 2.803. The general guidelines in § 2.803 prohibit the marketing or sale of such equipment prior to a demonstration of compliance with the applicable equipment authorization and technical requirements in the case of a device subject to verification or Declaration of Conformity without special notification. Section 2.803(c)(2) permits limited marketing activities prior to equipment authorization, for devices that could be authorized under the current rules; could be authorized under waivers of such rules that are in effect at the time of marketing; or could be authorized under rules that have been adopted by the Commission but that have not yet become effective. These devices may be not operated unless permitted by § 2.805.

The following general guidelines apply for third party notifications: (a) A RF device may be advertised and displayed at a trade show or exhibition prior to a demonstration of compliance with the applicable technical standards and compliance with the applicable equipment authorization procedure provided the advertising and display is accompanied by a conspicuous notice specified in §§ 2.803(c)(2)(iii)(A) or 2.803(c)(2)(iii)(B).

(b) An offer for sale solely to business, commercial, industrial, scientific, or medical users of an RF device in the conceptual, developmental, design or pre-production stage prior to demonstration of compliance with the equipment authorization regulations may be permitted provided that the prospective buyer is advised in writing at the time of the offer for sale that the equipment is subject to FCC rules and that the equipment will comply with the appropriate rules before delivery to the buyer or centers of distribution.

(c) Equipment sold as evaluation kit may be sold to specific users with notice specified in § 2.803(c)(2)(iv)(B).

The information to be disclosed about marketing of the RF device is intended:

(1) To ensure the compliance of the proposed equipment with Commission rules; and

(2) To assist industry efforts to introduce new products to the marketplace more promptly.

The information disclosure applies to a variety of RF devices that:

(1) Is pending equipment authorization or verification of compliance;

(2) May be manufactured in the future;

(3) May be sold as kits; and

(4) Operates under varying technical standards.

The information disclosed is essential to ensuring that interference to radio communications is controlled.

In this document, the Federal Communications Commission (Commission) updates its initial screen for review of spectrum acquisitions through secondary markets and makes determinations regarding whether to establish mobile spectrum holding limits for its upcoming auctions of high- and low-band spectrum, in light of the growing demand for spectrum, the differences between spectrum bands, and in accordance with its desire to preserve and promote competition.

This is a summary of the Commission's Report and Order (R&O), WT Docket No. 12-269; Docket No. 12-268; FCC 14-63, adopted May 15, 2014 and released June 2, 2014. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com. Copies of the R&O also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket No. 12-269. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov.

1. In the R&O the Commission updates its spectrum screen for its competitive review of proposed secondary market transactions to reflect current suitability and availability of spectrum for mobile wireless services. It adds to its spectrum screen: 40 megahertz of AWS-4; 10 megahertz of H Block; 65 megahertz of AWS-3 (when it becomes available on a market-by-market basis); 12 megahertz of BRS; 89 megahertz of EBS; and the total amount of 600 MHz spectrum auctioned in the Incentive Auction. It subtract from its spectrum screen: 12.5 megahertz of SMR; and 10 megahertz that was the Upper 700 MHz D Block. The Commission establishes a market-based spectrum reserve of up to 30 megahertz in the Incentive Auction in each license area to ensure against excessive concentration in holdings of low-band spectrum and ensuring that all bidders bear a fair share of the cost of the Incentive Auction. It adopts limits on secondary market transactions of 600 MHz spectrum licenses for six years post-auction. It declines to adopt auction-specific limits for AWS-3. It treats certain further concentrations of below-1-GHz spectrum as an enhanced factor in its case-by-case analysis of the potential competitive harms posed by individual transactions.

I. Preserving and Promoting Competition in the Mobile Wireless Marketplace

2. The Commission has long recognized that “spectrum is an input in CMRS markets,” and that “the state of control over the spectrum input is a relevant factor” in its competitive analysis. Ensuring that sufficient spectrum is available for multiple existing mobile service providers as well as potential entrants is crucial to promoting consumer choice and competition throughout the country, including in rural areas, and is similarly crucial to fostering innovation in the marketplace. For these reasons, Congress directed the Commission to proactively “include safeguards to protect the public interest” when specifying the classes and characteristics of licenses and permits to be issued by competitive bidding, and to “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses[.]” In order for there to be robust competition, multiple competing service providers must have access to or hold sufficient spectrum to be able to enter a marketplace or expand output rapidly in response to any price increase or reduction in quality, or other change that would harm consumer welfare. Consistent with the Commission's statutory mandate, the fundamental goal that has guided its policies regarding mobile spectrum holdings has been the preservation and promotion of competition, which in turn, enables consumers to make choices among numerous service providers and leads to lower prices, improved quality, and increased innovation.

3. Since the Commission's last comprehensive review of its mobile spectrum holdings policies more than a decade ago, the marketplace for mobile wireless services has evolved significantly—both in consumer demand for services and market structure—as has the role of low-band spectrum for coverage purposes and high-band spectrum for capacity purposes in the deployment of providers' networks. As providers deploy next-generation mobile networks, the engineering properties and deployment capabilities of the mix of particular spectrum bands in providers' holdings have become increasingly important, particularly as multi-band phones allow users to take advantage of the different properties of different spectrum bands. Moreover, while the mobile wireless marketplace a decade ago consisted of six near-nationwide providers and a substantial number of regional and small providers, since then, there has been a significant degree of consolidation resulting in a market with four nationwide providers and a smaller number of regional and more local service providers.

4. Reflecting this evolution in the mobile wireless marketplace, the Commission, in recent years, has considered in more detail the technical distinctions among spectrum bands used to deploy next-generation mobile networks. The Commission adopted mobile spectrum holdings policies in this rulemaking that address how the differences among spectrum bands may affect its overall competitive analysis of spectrum acquisitions and therefore its decision making for both auctions and secondary market transactions.

5. In adopting these policies, the Commission is mindful that the statutory framework established by Congress for mobile wireless services and implemented by the Commission, with its reliance on competition as the primary driver of consumer benefits, has fostered substantial economic growth and consumer benefits for its nation. Among other goals, Congress has directed us as well to promote the “efficient and intensive use of the electromagnetic spectrum” and avoid an “excessive concentration of licenses” in the design of systems of competitive bidding, as well as to review transactions to ensure that they serve the public interest.

6. Consistent with the evolution of the marketplace and the Commission's statutory directives and policy goals, and in light of the evolution of wireless services demanded by consumers, the Commission must ensure that multiple service providers have access to spectrum in the foreseeable future. Existing marketplace conditions, including concerns about the potential for anticompetitive behavior, inform its predictive judgment but are not determinative as to whether the Commission needs to act. The mobile spectrum holdings policies the Commission adopted are necessary to preserve and promote consumer choice and competition among multiple service providers, promote the efficient and intensive use of spectrum, maximize economic opportunity, and foster the deployment of innovative technologies.

A. Evolution of the Mobile Wireless Marketplace

7. During the past decade, provider supply and consumer demand for wireless services has exploded, moving from the provision of mobile voice services to the provision of mobile broadband services. The rapid adoption of smartphones, tablet computers, mobile applications, and increasing deployment of high-speed 3G and now 4G technologies, is driving significantly more intensive use of mobile networks. In 2013, a single smartphone generated 48 times more mobile data traffic than a feature phone, and average smartphone usage grew 50 percent in 2013. The adoption of smartphones increased from 27 percent to 54 percent of U.S. subscribers from December 2010 to December 2012. Consequently, service providers generally need access to more spectrum to meet the increasing demand for mobile broadband, which consumes far greater amounts of bandwidth than did mobile phones just a short time ago.

8. The wireless industry has also undergone significant consolidation during the past decade. In 2003, there were six nationwide facilities-based wireless service providers: AT&T Wireless, Sprint PCS, Verizon Wireless, T-Mobile, Cingular Wireless, and Nextel. Now there are four—Verizon Wireless, AT&T, Sprint, and T-Mobile. In addition, there have been several significant spectrum-only transactions, such as AT&T-Qualcomm (2011), Verizon Wireless-SpectrumCo (2012), and AT&T WCS (2012) that have resulted in increased spectrum aggregation among the remaining providers.

9. Concentration in the market share of the major providers has also increased during that time period. As of December 2003, the top six facilities-based nationwide providers accounted for approximately 79 percent of total mobile wireless subscribers in the country. By December 2013, the top four facilities-based nationwide providers had increased their combined market share to 97 percent of all subscribers. Verizon Wireless and AT&T together accounted for 68 percent of the nation's subscribers as of year-end 2013, compared to 51 percent in 2004. Some regional and local service providers have achieved significant market shares within particular local markets, often the most rural markets, but they typically rely on roaming agreements with nationwide facilities-based providers to extend the geographic reach of their networks.

10. The Commission has “ample latitude to adapt its rules and policies to the demands of changing circumstances.” In light of these trends and current spectrum aggregations, the Commission must examine whether changes in its mobile spectrum holdings policies are necessary to facilitate the robust competition that leads to lower prices, improved quality, and greater innovation. The following are some of the benefits of competition: Service providers have offered various pricing plans, ranging from tiered usage-based data pricing with overage charges (Verizon Wireless, AT&T) to unlimited data pricing (Sprint), and in 2012, both Verizon Wireless and AT&T launched shared data plans for smartphones and other mobile data devices, and T-Mobile reintroduced an unlimited smartphone data pricing option.

B. Ensuring That All Americans Benefit From Mobile Wireless Competition

11. Based upon the record before us, the Commission finds that the spectrum aggregation limits the Commission adopted is needed to advance its statutory objectives under section 309(j), to promote competition, and to avoid competitive harms. The Commission's competition-related decision making is designed to advance the public interest by preserving and promoting competition that benefits consumers and the Commission must consider the totality of the circumstances and choose policies that are most likely to allow competition to flourish for the public benefit. Accordingly, the Commission recognizes the important tradeoffs in the policy decision at hand. Policies that would limit the ability of major providers to acquire additional spectrum licenses may limit their ability to provide new services or serve new customers. At the same time, policies that would allow these service providers to acquire all or substantially all of the spectrum licenses to be auctioned in the near future, particularly spectrum licenses being auctioned in the Incentive Auction, or that would allow further concentration in below-1-GHz spectrum in secondary market transactions without enhanced scrutiny, would raise significant competitive issues.

12. Raising Rivals' Costs and Foreclosure. In 2001, the Commission recognized that “it is at least a threshold possibility that because the supply of suitable spectrum is limited, firms in CMRS markets might choose to overinvest in spectrum in order to deter entry, depending on the costs of doing so.” In certain situations, a dominant firm may raise rivals' costs by a variety of means, including input monopolization. As rivals' costs are raised, the competiveness of the marketplace is likely to diminish. Foreclosure can occur when competitors have an incentive and ability to acquire an input not only to put it to their own use, but also to withhold it from their rivals.

13. Discussion. In its review of the evolution of the mobile wireless marketplace, its current state, and the potential future effects on consumers, the Commission is required to consider a number of concerns to advance the public interest. Section 309(j) requires the Commission to balance a number of specific statutory objectives including competition, diversity and the avoidance of excessive concentration in designing its rules regarding spectrum licenses and the competitive bidding assignment process. The Commission finds that, under the totality of circumstances, the public interest will be advanced by: Reaffirming the current case-by-case review of proposed transactions, with continued use of a spectrum screen triggered at aggregations of approximately one third or more of the spectrum suitable and available for mobile telephony/broadband; updating the spectrum screen to include spectrum currently suitable and available for mobile telephony/broadband; treating certain levels of increased aggregations of below-1-GHz spectrum as an enhanced factor during case-by-case review of secondary market transactions involving below-1-GHz spectrum; and establishing a market-based spectrum reserve in the upcoming 600 MHz auction.

14. There are three independent bases for its conclusion, each of which the Commission finds warrants the policies the Commission adopted: (1) The importance of access to low-band spectrum to promote variety in licensees and the advancement of rural deployment as directed by Section 309(j), (2) the benefits to consumers associated with robust competition among multiple providers having access to low-band spectrum, and (3) the potential for competitive harm if the Commission does not provide safeguards to mitigate against the possibility of providers raising rivals' costs or foreclosing competition by denying competitors access to low-band spectrum.

15. Its findings are compelled by the changing circumstances posed by the marketplace today: Increased consolidation, the growth in demand for mobile broadband, and the significance of the upcoming 600 MHz auction. First, the Commission recognizes that the mobile wireless marketplace has undergone considerable consolidation, both in terms of number of firms and relative market shares, as well as increased concentration of low-band spectrum. Recent acquisitions have exacerbated this concentration. While limited amounts of low-band spectrum might theoretically be acquired in secondary market transactions, the vast bulk of that spectrum has already been acquired. There is also significantly less low-band spectrum than there is high-band spectrum: after its decisions, there will be 134 megahertz of spectrum below 1 GHz suitable and available for the provision of mobile broadband services and 446.5 megahertz of suitable and available spectrum above 1 GHz. Concentration in spectrum holdings by service providers of low-band spectrum has become particularly pronounced, with Verizon Wireless and AT&T together having aggregated more than 90 percent of all cellular spectrum. In addition, these two service providers together currently hold approximately 72 percent of 700 MHz spectrum. By comparison, variation in spectrum holdings of higher-frequency spectrum in the range of 1 to 2 GHz is more evenly distributed: Of the PCS spectrum, Verizon Wireless holds 16 percent, AT&T holds 29 percent, Sprint holds 28 percent and T-Mobile holds 22 percent; of the AWS-1 spectrum, Verizon Wireless holds 37 percent, AT&T holds 13 percent, and T-Mobile holds 42 percent.

16. Second, its findings are informed by the skyrocketing consumer demand for mobile broadband. Today, consumers are demanding more data at higher speeds, while at home, at work, and in transit. The Commission finds that to provide sufficient level of service in the marketplace to the benefit of consumers, providers will need to deploy more spectrum that can provide both coverage and in-building penetration, as well as spectrum that can provide the increased throughput for mobile broadband applications

17. Third, its findings are based on the recognition that the 600 MHz spectrum that will be made available in the Incentive Auction will be the last offering of a significant amount of nationwide greenfield low-band spectrum for the foreseeable future. This is particularly important because of the very different characteristics of low-band spectrum. There is a large frequency gap between the below-1-GHz spectrum (in the 700 and 800 MHz bands now largely held by the leading providers and the 600 MHz Incentive Auction spectrum) and the remaining spectrum currently suitable and available for mobile broadband use, beginning with the AWS-1 band at 1710 MHz. Low-band spectrum possesses distinct propagation advantages for network deployment, particularly in rural areas and indoors. As a result, the auction of spectrum below 1 GHz presents a once-in-a-generation opportunity to promote competition as specifically required by section 309(j). Based upon current trends in consumer demand for mobile broadband services, the Commission concludes that the decisions the Commission makes here will have a significant impact on the extent to which competition may flourish for years to come.

18. Though there is substantial support in the record for distinguishing between low-band and high-band spectrum based on propagation characteristics, as discussed above, the Commission finds that the record does not support such categorical distinctions between three different spectrum groupings—below-1-GHz, 1-2.2 GHz, and 2.3-2.7 GHz—as recently advocated by Sprint.

19. Variety of Licensees and Rural Deployment. Under Section 309(j), Congress mandated that the Commission designs auctions to “include safeguards to protect the public interest in the use of the spectrum,” including the objectives to disseminate licenses “among a wide variety of applicants” and to promote deployment of new technologies, products, and services to “those residing in rural areas.” The limited restrictions the Commission imposes on spectrum holdings will promote both of these statutory policies. A variety of licensees is particularly important in light of the lack of competitive offerings in rural America today.

20. Increasing the number of providers who have access to low-band spectrum can increase the competitive offerings of mobile wireless service for consumers, particularly in rural areas. Two nationwide providers control the vast majority of low-band spectrum, and this disparity makes it difficult for rural consumers to have access to the competition and choice that would be available if more wireless competitors also had access to low-band spectrum. Low-band spectrum, given its unique propagation characteristics, can serve as a foundation for expansion of an existing network or a new or upcoming service providers' network deployment as it builds a customer base to support further growth. The Commission finds that its spectrum holdings policies will promote variety in licensees and deployment of new technologies to those residing in rural areas.

21. The Commission believes that holding a mix of spectrum bands is advantageous to providers and that consumer's benefit when multiple providers have access to a mix of spectrum bands which in turn can increase competition, drive down prices, and ensure continued innovation and investment. Accordingly, the Commission finds its public interest goal of promoting consumer welfare would be advanced by the policies the Commission adopted.

22. Potential for Competitive Harm From Increased Aggregation of Spectrum. The Commission also finds that in the absence of additional below-1-GHz spectrum on a nationwide basis, there is a substantial likelihood of competitive harm if providers that currently lack sufficient access to such spectrum cannot acquire it. Under section 309(j), the Commission has mandates to promote competition, promote efficient use of spectrum, and avoid the excessive concentration of licenses. Low-band spectrum is less costly to deploy and provides higher coverage quality and the leading providers have most of the low-band spectrum available today. If they were to acquire all or substantially all of the remaining low-band spectrum, they would benefit independently of any deployment of this newly acquired spectrum to the extent that their rivals are denied its use. Without access to this low-band spectrum, their rivals would be less able to provide a competitive alternative.

23. Along with an attenuated ability to increase output or service quality in response to price increases, providers that lack access to low-band spectrum may lack the ability quickly to expand coverage or provide new or innovative services, which would have a significant impact on competition in the mobile wireless marketplace. The Commission agrees that a service provider that is limited to high-band spectrum holdings would face challenges to provide services as robust as those offered by providers holding a mix of low- and high-band spectrum. The consumer harms from the raising of rivals' costs from increased concentration of low-band spectrum outweigh the potential benefits of unlimited spectrum aggregation. Accordingly, the Commission finds that the limited restrictions the Commission adopted will reasonably balance its goals of promoting competition, ensuring the efficient use of spectrum, and avoiding an excessive concentration of licenses in accord with section 309(j).

24. Foreclosure. The Commission agrees with DOJ, today's mobile wireless marketplace is characterized by factors that, according to DOJ, increase the potential for anticompetitive conduct, including high market concentration, highly concentrated holdings of low-band spectrum, high margins, and high barriers to entry. These risk factors increase the incentive and ability for a provider with low-band spectrum to bid for the spectrum in an attempt to stifle competition that may arise if multiple licensees were to hold low frequency spectrum. As a result, such a provider might be the highest bidder in a spectrum auction, not because it will put the spectrum to its highest use, but because it is motivated to engage in a foreclosure strategy. In light of this risk and balancing the inherent tradeoffs, the Commission finds that the limited restrictions the Commission enacted is a reasonable balance of the Section 309(j) and public interest factors that form its statutory mandate, including the goals to promote competition, disseminate licenses among a wide variety of applicants, ensure high quality service to those in rural areas and avoid the excessive concentration of licenses, while also promoting the efficient and intensive use of the spectrum.

C. Conclusion

25. For the reasons set forth above, spectrum is a limited and essential input for the provision of mobile wireless telephony and broadband services, and ensuring access to, and the availability of, sufficient spectrum is critical to promoting the competition that drives innovation and investment. The Communications Act has long required the Commission to examine closely the impact of spectrum aggregation on competition, innovation, and the efficient use of spectrum to ensure that spectrum is allocated and assigned in a manner that serves the public interest, convenience and necessity, and avoids the excessive concentration of licenses. In recent years, the Commission has considered in more detail and largely in the context of its case-by-case analysis of secondary market transactions how distinctions among spectrum bands affect competition in the provision of next-generation mobile broadband services.

26. In today's marketplace, in many service areas currently suitable and available below-1-GHz spectrum is disproportionately concentrated in the hands of larger nationwide service providers: The two largest providers hold 73 percent of the low-band spectrum. Particularly in the context of the once-in-a-generation Incentive Auction, the Commission finds that there is a reasonably foreseeable risk of not achieving its various section 309(j) goals whether or not leading providers are motivated by foreclosure strategies. The Commission concludes that if the Commission do not act at this time to ensure the highest use of low-band spectrum, the competitive choices available to wireless consumers will likely be substantially less attractive. The Commission therefore finds it essential to establish clear and transparent policies that will preserve and promote competition in the future, promote the efficient use of spectrum, ensure competitive mobile broadband service in rural areas, and avoid an excessive concentration of licenses. The Commission finds that excessive concentration in the allocation of relatively scarce below-1-GHz spectrum, given ever increasing consumer demand for more bandwidth-intensive services, would substantially harm the public interest and indeed, would create a significant risk in the future of an insufficient number of service providers with a network capable of satisfying consumer demand.

27. The Commission finds that the promotion of competition, variety of licensees, rural coverage, and consumer choice in the mobile marketplace, as well as in the future, crucially depends upon multiple providers having access to the low-band spectrum they need to operate and vigorously compete. The Commission also finds that the Commission must consider the potential for anticompetitive results if the concentrated holdings of below-1-GHz spectrum are not addressed. The Commission cannot ignore the possibility of diminished competition in the future, both from rivals' costs being raised and from foreclosure. Further, the Commission finds that the burden that some providers may experience by limits on their ability to acquire increasing amounts of below-1-GHz spectrum, when tailored to the minimum the Commission believed necessary to promote competition, will be outweighed by the public interest benefits that will flow from the preservation and promotion of robust and sustainable competition. By adopting clear and transparent spectrum aggregation limits, the Commission aim to ensure that American consumers have meaningful choices among multiple service providers in the future.

II. Changes to the Spectrum Screen

28. The Commission retains the current standard for whether particular bands should be included in the spectrum screen—“suitable” and “available” in the near term for the provision of mobile telephony/broadband services. The Commission determines that the following spectrum should be added to the spectrum screen: The 600 MHz band (at the conclusion of the Incentive Auction), Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz spectrum bands (AWS-4), H Block, additional BRS spectrum, the majority of the EBS spectrum, and the AWS-3 band (on a market-by-market basis as it becomes “available”). The Commission also determines that it should not include the Upper 700 MHz D Block and a certain amount of the SMR spectrum, both of which previously have been included.

A. Standard for Inclusion of Bands

29. When assessing spectrum aggregation in its review of wireless transactions, the Commission evaluates the current spectrum holdings of the acquiring firm that are “suitable” and “available” in the near term for the provision of mobile telephony/broadband services. Suitability is determined by whether the spectrum is capable of supporting mobile service given its physical properties and the state of equipment technology, whether the spectrum is licensed with a mobile allocation and corresponding service rules, and whether the spectrum is committed to another use that effectively precludes its uses for mobile services. Spectrum is considered “available” if it is “fairly certain that it will meet the criteria for suitable spectrum in the near term, an assessment that can be made at the time the spectrum is licensed or at later times after changes in technology or regulation that affect the consideration.”

30. In the Mobile Spectrum Holdings NPRM, 77 FR 61330, October 9, 2012, the Commission sought comment on whether to continue to consider spectrum based on the suitability and availability standard or whether to consider other factors and asked for any legal, economic, and engineering justifications to support existing or modified criteria to determine the suitability and availability standard. The Commission also sought comment on the application of the relevant factors to particular spectrum bands and which spectrum bands should be included in the Commission's spectrum analysis.

31. The Commission retains the current definition. The Commission finds that the current suitable and available standard has worked well to identify new spectrum to be included in the spectrum screen, and the record does not provide persuasive evidence to support modifying the current suitability and availability standard. Any narrower definition such as “actually” or “imminently” available would preclude relevant spectrum from being accounted for in its analysis of spectrum aggregation as the Commission review secondary market wireless transactions.

B. 600 MHz Band

32. The Commission finds that the 600 MHz Band is suitable for the provision of mobile telephony/mobile broadband services. In the Incentive Auction Report and Order, the Commission establishes rules to implement the Incentive Auction and to govern the use of the 600 MHz Band for the provision of mobile wireless services and adopts a band plan that facilitates wireless broadband deployment operations. The Commission also finds that the 600 MHz Band is available for the provision of mobile telephony/mobile broadband services, citing the framework for transitioning incumbent broadcasters from the 600 MHz Band within 39 months of the close of the auction set forth in the Incentive Auction Report and Order. Given this concrete transition framework, the relative clarity regarding the availability of this spectrum, and the importance of this band to the mobile wireless marketplace going forward, the Commission anticipates that the spectrum cleared at auction is likely to begin having a competitive impact very shortly after the auction ends. As a result, the Commission will consider the 600 MHz Band to be available upon the release of the Channel Reassignment PN after conclusion of the Incentive Auction. The amount of repurposed 600 MHz Band spectrum added to the spectrum screen will be equal to the total megahertz amount of spectrum repurposed for flexible use wireless licenses.

C. Advanced Wireless Service1. AWS-4 Spectrum

33. The Commission finds that the 40 megahertz of spectrum in the AWS-4 band is suitable and available for the provision of mobile/telephony broadband services, and therefore should be included in the spectrum screen. In the AWS-4 Report and Order, the Commission adopted licensing, operating, and technical rules for stand-alone terrestrial mobile wireless operations in the AWS-4 band, which already included an allocation for mobile use, and took other actions to remove regulatory barriers to mobile broadband use of the AWS-4 band, as described above. The Commission also determined that it would assign AWS-4 licenses to DISH, as the incumbent MSS operator in that spectrum, and established a concrete, proven process for efficient relocation of incumbent operations from 2180-2200 MHz. In light of these Commission actions, the Commission finds that the 40 megahertz in the AWS-4 band should be included in the spectrum screen going forward.

34. The Commission rejects argument that it should include only 35 out of the 40 megahertz of AWS-4 spectrum because of the stringent technical restrictions placed on AWS-4 operations in 2000-2005 MHz to protect adjacent operations in the upper portion of the H Block (1995-2000 MHz). Given the flexibility provided in the AWS-4 Report and Order allowing these technical restrictions on AWS-4 operations in 2000-2005 MHz to be modified by commercial agreements between licensees of the AWS-4 band and the H Block, and the fact that DISH now holds all AWS-4 and H Block licenses, the Commission concludes that any potential interference issues between 2000-2005 MHz and 1995-2000 MHz should be sufficiently resolved so that the Commission should count 2000-2005 MHz in the spectrum screen along with the other 35 megahertz of AWS-4 spectrum.

2. H Block

35. The Commission finds that the H Block spectrum is suitable and available for the provision of mobile/telephony broadband services, and therefore should be counted in the spectrum screen. In the H Block Report and Order (78 FR 50214, August 16, 2013), the Commission explained that through the adoption of service rules for this band, the Commission increased the nation's supply of spectrum for flexible-use services, including mobile broadband, and in particular would extend the widely deployed broadband PCS band used by numerous providers to offer mobile service across the United States. The Commission also found that, consistent with the technical rules it adopted, the use of both the 1915-1920 MHz band and the 1995-2000 MHz band can occur without causing harmful interference to broadband PCS downlink operations at 1930-1995 MHz. In light of these conclusions, along with the recent completion of the H Block auction and the fact that incumbent licensees in these bands previously were cleared by UTAM, Inc. and by Sprint, the Commission finds that the H Block should be included in the spectrum screen going forward.

3. AWS-3 Bands

36. The Commission finds that the AWS-3 bands (1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz) are suitable for the provision of mobile telephony/mobile broadband services. In the recent AWS-3 Report and Order, the Commission amended the Allocation Table to include a mobile, non-Federal allocation for the 1695-1710 MHz and 1755-1780 MHz bands, which already applied to the 2155-2180 MHz band and found that licensing AWS-3 bands in a combination of 5 and 10 megahertz blocks aligns well with a variety of wireless broadband technologies, including LTE, Wideband Code Division Multiple Access (WCDMA), HSPA, and LTE-advanced. The Commission concluded that pairing uplink/mobile transmit operations in the 1755-1780 MHz band with downlink operations in the 2155-2180 MHz band would be compatible with similar operations in the adjacent AWS-1 band, effectively creating a combined 140 megahertz band. Further, the Commission observed that no regulation would prohibit licensees from pairing the unpaired 1695-1710 MHz uplink band with another present or future licensed downlink band. Given the anticipated use of the AWS-3 bands for mobile broadband service, either as an extension of the AWS-1 band or potentially in combination with other AWS bands, the Commission concludes that the AWS-3 bands are suitable for the provision of mobile telephony/mobile broadband service.

37. The Commission also finds that the AWS-3 bands should be considered available for mobile telephony/mobile broadband services on a market-by-market basis in the future, given that the timing of that access will depend on the nature of the Federal operations affecting each particular market. Commercial operators will have access to the 1755-1780 MHz and 1695-1710 MHz bands outside of areas where federal operations are protected during their transition, inside areas where federal operations are protected during their transition if successfully coordinated with the Federal incumbent, in areas in which the Federal incumbents have relocated pursuant to their Transition Plan, and inside areas in which Federal incumbents are protected indefinitely if successfully coordinated with the Federal incumbent. Accordingly, given that the effect of Federal incumbent operations on the timing and scope of commercial operations will vary from market to market, the Commission determines that the 1755-1780 MHz and 1695-1710 MHz bands will become available on a market-by-market basis in the future. In addition, consistent with the paired offering of the 2155-2180 MHz band with the 1755-1780 MHz band, the Commission will count the 2155-2180 MHz band as available for purposes of the spectrum screen at the same time the Commission counts the 1755-1780 MHz band in the particular market, consistent with its approach to the paired AWS-1 band.

38. The Commission notes that the timing and the extent of access by commercial licensees to the 1755-1780 MHz and 1695-1710 MHz bands in particular markets will depend, in part, on the timelines to be set in the Transition Plans for relocating Federal incumbents, which will be made publicly available. In light of the importance of this band in adding capacity spectrum for mobile wireless providers to deploy next-generation networks, and the timelines to be set in the Transition Plans for different systems in different markets, the Commission will count the 1755-1780 MHz and 1695-1710 MHz bands in the spectrum screen in a particular market once all relocating Federal incumbent systems in that market are within three years of completing relocation, according to the Transition Plans. The Commission notes that the timing and the extent of access by commercial licensees to these AWS-3 bands also will depend on successful coordination with federal systems during the transition process and the Federal systems that will not be relocating from these bands. However, given that the nature and timing of the coordination will be the subject of two-party private discussions between commercial licensees and Federal incumbents and will vary from market to market, from licensee to licensee, and from system to system, the Commission will not base the timing of when the Commission count AWS-3 spectrum to be available in a particular market on the status of coordination with non-relocating Federal incumbents. The Commission notes that the Commission will count the 2155-2180 MHz band in the spectrum screen for a particular market at the same time the Commission counts the 1755-1780 MHz and 1695-1710 MHz bands in that market, for the reasons indicated above.

D. Big LEO Bands

39. The Commission declines to add to the spectrum screen Big LEO MSS spectrum in the 2483.5-2495 MHz and 1610-1617.775 MHz ranges, noting that Globalstar's ATC authority to operate terrestrial base stations and mobile terminals using this spectrum under the authority of a waiver granted in 2008 was suspended in 2010 and none of these proposed changes have been acted on by the Commission. Thus, the Commission declines to add this Big LEO MSS spectrum to the spectrum screen at this time. The Commission distinguishes this decision from its determination to add to the spectrum screen the AWS-4 band (2000-2020 MHz and 2180-2200 MHz), for which the Commission has taken a number of actions to make the band suitable and available for mobile telephony/mobile broadband. Specifically, for the AWS-4 band, the Commission has added a mobile allocation, adopted licensing rules for stand-alone terrestrial mobile wireless operations, and assigned the spectrum to the incumbent MSS operator, DISH.

E. BRS/EBS Bands

40. Background. The 194 megahertz in the 2496-2690 MHz band (2.5 GHz) comprises (1) 73.5 megahertz licensed to commercial operators in the BRS band; (2) 112.5 megahertz licensed to eligible educational institutions or non-profit educational organizations in the EBS band; and (3) 8 megahertz licensed to BRS or EBS as guard bands dividing the lower, middle, and upper band segments of the 2.5 GHz.

41. In 2008, in the Sprint-Clearwire Order, the Commission decided to include in the spectrum screen 55.5 megahertz of BRS spectrum in the upper band segment, in those markets in which the transition to the new band plan was complete. The Commission observed that 2.5 GHz licensees had made substantial progress in the prior few years in transitioning to the new band plan, finalizing the WiMAX standards, developing equipment, and formulating their plans for using the 2.5 GHz band to provide service. The Commission declined to include in the spectrum screen the 12 megahertz of BRS spectrum in the middle band segment (“MBS”) due to concerns of interference from legacy high-power video operations, stating it lacked sufficient information “to determine the extent to which MBS is in fact available for mobile telephony/broadband services.” The Commission also declined to include in the spectrum screen the BRS Channel-1 (2496-2502 MHz), which is not contiguous to the 55.5 megahertz of BRS spectrum that was included, finding that the Channel does not fit into the contemplated WiMAX deployment plans. Further, the Commission excluded from the screen the 8 megahertz of guard bands because they are secondary to adjacent-channel operations and they are too narrow to be used unless they were all aggregated in a market.

42. The Commission currently does not include in the screen any EBS spectrum, which is licensed to eligible educational entities who can lease spectrum to commercial operators subject to the requirement, inter alia, to reserve at least five percent of digital transmission capacity for educational purposes. In the Sprint-Clearwire Order, it declined to include EBS spectrum in the screen, observing that “the primary purpose of EBS is to further the educational mission of accredited public and private schools, colleges and universities providing a formal educational and cultural development to enrolled students through video, data, or voice transmissions.” The Commission noted that, while educational licensees are allowed to lease their excess capacity to commercial operators, leasing is subject to various special requirements designed to maintain the primary educational character of services provided using EBS spectrum. In addition, the Commission recognized that other elements of the EBS licensing regime, such as its solely site-specific character, with the absence of any licensee in various unassigned EBS “white spaces,” complicate use of this spectrum for commercial purposes. Further, the Commission indicated that it was sensitive to the concerns raised by EBS licensees that potential divestitures, in response to spectrum aggregation concerns relating to competition among commercial services, could disproportionately harm EBS licensees.

43. In subsequent transaction reviews, the Commission declined to add EBS or additional BRS spectrum to the spectrum screen, finding either that the circumstances had not sufficiently changed from Sprint-Clearwire Order or that the instant rulemaking proceeding is a more appropriate place to evaluate this issue. In the context of reviewing the SoftBank-Sprint-Clearwire transaction, however, the Commission did consider arguments on the record regarding the competitive effect of Sprint obtaining 100 percent stock ownership in and de facto control of Clearwire's BRS and EBS spectrum holdings, finding competitive harm unlikely.

44. Discussion. The Commission finds that it is necessary to modify the amount of 2.5 GHz spectrum the Commission currently includes in the screen to reflect today's marketplace realities. The Commission will update the spectrum screen to increase the amount of 2.5 GHz spectrum from 55.5 megahertz to 156.5 megahertz. The Commission will add the 12 megahertz in the two MBS BRS channels, as well as 89 megahertz of EBS spectrum, which represents most of the EBS spectrum, adjusted to reflect white space and education use elements. The Commission will continue to exclude the six megahertz in BRS Channel 1 and the guard bands.

45. As an initial matter, the Commission observes that Sprint announced its intent to integrate its 2.5 GHz spectrum throughout its network to provide mobile broadband service. Sprint recently announced its next generation service “Sprint Spark,” an enhanced LTE network, which it plans to deploy over the next three years using its SMR, PCS, and 2.5 GHz spectrum. The Commission finds that based upon how the 2.5 GHz band is being used today, and will be used in the near term; the majority of the band is suitable and available for mobile telephony/mobile broadband services.

46. With respect to BRS spectrum, the Commission finds that, in addition to the 55.5 megahertz currently counted in the screen, the Commission should include 12 megahertz of BRS MBS spectrum. The Commission recognizes that legacy video operations in the MBS, once considered a significant impediment to the deployment of cellularized operations in the MBS, are now no longer a barrier to deploying mobile broadband service in the vast majority of markets. The Commission notes that Sprint recently has acknowledged that BRS MBS channels are “more routinely available” for mobile broadband use. Accordingly, the Commission includes the 12 megahertz of BRS MBS spectrum in the screen.

47. However, the Commission will continue to exclude the 6 megahertz BRS Channel 1 (2496-2502 MHz). The proponents of including BRS Channel 1 in the screen have not demonstrated any material change in circumstances since 2008 with respect to that channel and the Commission acknowledges Sprint's concern that BRS Channel 1 is not contiguous with the other BRS channels and therefore is not conducive to the provision of mobile telephony/mobile broadband service.

48. With respect to EBS spectrum, the Commission declines to continue its policy of excluding all EBS spectrum. Leasing in and of itself does not preclude the spectrum from meeting the suitable and available standard. The Commission does not find that the differences in propagation characteristics between the 2.5 GHz band and lower frequency spectrum should result in its continued exclusion of the 2.5 GHz band from the spectrum screen for purposes of its competitive review. Nor does the Commission agree with Sprint that the aggregation of 20 megahertz of this band is a necessary precursor to counting EBS in the screen. The benefit of contiguous holdings in a band is not a factor unique to EBS spectrum that warrants excluding EBS holdings from the screen in cases where such contiguity is not achieved.

49. Although the Commission finds that EBS spectrum generally is suitable and available for mobile telephony/mobile broadband services, the Commission agrees with Sprint that there are certain factors unique to EBS that warrant not including all of the EBS spectrum in the screen. The Commission will continue to exclude the five percent of the EBS capacity that is reserved for educational uses. The Commission remains committed to EBS spectrum serving educational purposes. Originally, the 2500-2690 MHz band was allocated for ITFS service and “established to provide formal education and cultural development in aural and visual form to students enrolled in accredited public and private schools, colleges and universities.” The Commission continues to support the education mission of accredited public and private schools, colleges, and universities providing a formal educational and cultural development to enrolled students through video, data, or voice transmissions. Therefore, as a starting point, the Commission will include 95 percent, or approximately 107 megahertz, of EBS spectrum in the screen.

50. With EBS spectrum licensed on a site-specific basis, certain areas exist where the Commission has not assigned a license to an educational entity. And no educational entity has been able to apply for a license for an EBS white space since 1995. Therefore, no commercial wireless provider has ever had the opportunity to lease EBS spectrum in that area. Therefore, white spaces can present certain obstacles for providing reliable, wide-area coverage. The Commission finds it reasonable to discount for white space when including EBS spectrum in the screen.

51. Given the complexity of calculating a white space discount on a market-by-market basis, Sprint proposes a uniform, nationwide EBS white space discount for administrative practicability and regulatory certainty. Sprint calculated that across all EBS channels, an average of approximately 16.5 percent of the population is located in EBS white space and therefore proposes to use a 16.5 percent discount. The Commission agrees that a nationwide discount is the best option for applying a white space discount for EBS spectrum and find Sprint's proposal reasonable. While as Verizon Wireless notes, using a nationwide average may in some instances undercount EBS white space in some markets and overcount EBS white space in other markets, the Commission finds that using an average across all markets is a reasonable method, which balances administrative efficiency with the complexity of a precise market-by-market calculation. Thus, after taking the discount into consideration, of the initial 107 megahertz of EBS spectrum, the Commission will include 89 megahertz of EBS spectrum in the screen. As discussed in Section VI.G below, the Commission declines to further weight EBS spectrum, or other spectrum bands, based on propagation characteristics.

F. Upper 700 MHz D Block

52. In light of Congress' reallocation of the Upper 700 MHz D Block spectrum (758-763 MHz, 788-793 MHz) for public safety use—and the subsequent steps taken by the Commission and the Public Safety and Homeland Security Bureau to effectuate the reallocation and licensing of this spectrum for public safety—the Commission finds that the 10 megahertz previously designated as the Upper 700 MHz D Block is no longer suitable and available for the provision of mobile telephony/mobile broadband services. Therefore, going forward, the Commission will exclude from the spectrum screen that 10 megahertz (758-763 MHz, 788-793 MHz) that currently is part of the screen, along with the adjacent public safety broadband spectrum that is also now licensed to FirstNet (763-768 MHz, 793-798 MHz), which was not previously counted in the initial spectrum screen.

53. The Commission notes that, under the Spectrum Act, FirstNet is permitted to provide access to the 20 megahertz of Public Safety Broadband spectrum to commercial entities through certain “covered leasing agreements.” The Commission will not add to the screen any of this spectrum merely because FirstNet has entered into leasing arrangements contemplated by the Act. Deployment of this spectrum is essential to the critical statutory goal of deploying a nationwide interoperable public safety broadband network, and the Commission wants to provide equal incentives to all commercial operators to partner with FirstNet to make this goal a reality.

G. SMR Bands

54. In 2004, the Commission adopted a new band plan for the 800 MHz band to “address the [then] ongoing and growing problem of interference to public safety communications in the 800 MHz band.” The interference problem was caused “by a fundamentally incompatible mix of two types of communications systems: Cellular-architecture multi-cell systems . . . and high-site non-cellular systems.” To provide immediate relief, the Commission implemented technical standards that defined unacceptable interference in the 800 MHz band, while also reconfiguring the band to separate commercial wireless systems from public safety and other high site systems. Pursuant to the band reconfiguration, the Commission eliminated the interleaving of public safety and commercial channels in the 800 MHz band and separated cellularized multi-cell and non-cellularized high-site systems within the band.

55. Under the reconfiguration plan, Nextel (now Sprint) was required to vacate the 806-817 MHz and the 851-862 MHz band segments and relocate to 817-824/862-869 MHz. The Commission had designated the upper portion of the 800 MHz band (817-824 MHz/862-869 MHz) for Enhanced Specialized Mobile Radio (ESMR) systems and designated the lower portion of the 800 MHz band (806-815 MHz/851-860 MHz) for use by public safety, Critical Infrastructure Industries (CII), and other non-cellular systems.

56. The Commission eliminates from inclusion in the screen 7.5 megahertz in the 800 MHz Band because, after the Commission reconfigured the band, that spectrum is no longer licensed for commercial, cellularized operations. The Commission also eliminates the remaining 5 megahertz in the 900 MHz band that is narrowly-channelized in 125 kHz blocks and not adjacent to the remaining 14 megahertz of SMR spectrum that is licensed for and considered suitable and available for the provision of mobile telephony/mobile broadband services. Therefore, going forward, the Commission finds only 14 megahertz of SMR spectrum is suitable and available for the provision of mobile telephony/mobile broadband services and will be included in the screen.

III. Licensing Through Competitive Bidding

57. The Commission concludes that it is in the public interest, for auctions, to replace the current case-by-case approach of evaluating long form applications of winning bidders with a determination of whether a band-specific spectrum holding limit should apply ex ante to the licensing of particular bands through competitive bidding. In the R&O, the Commission finds that the Commission should determine what if any spectrum holding limitations should affect the licensing of particular bands through competitive bidding before the relevant competitive bidding process begins for that band. The Commission determines certain guidelines that the Commission will consider in making such determinations prior to the beginning of the competitive bidding process for a particular band, which generally will be made in the service rulemakings for those bands, enabling the Commission to take into account all relevant objectives specific to the bands in question and competitive bidding process. Given the proximity of the AWS-3 auction and Incentive Auction, the Commission makes determinations regarding whether to adopt, in the context of this rulemaking, any mobile spectrum holdings limits for the licensing of these bands through competitive bidding. In particular, based on the record in this proceeding and in the two service rulemakings, as well as the statutory goals set forth in the Communications Act and the Spectrum Act, the Commission reserves spectrum in the forward auction for the 600 MHz Band licenses in order to ensure against excessive concentration in holdings of below-1-GHz spectrum, and the Commission declines to adopt any mobile spectrum holding limits for the licensing of the AWS-3 bands through competitive bidding.

58. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on general approaches to address mobile spectrum policies at auction, including whether to retain its current case-by-case approach or adopt a bright-line limit. The Commission also sought comment on the costs and benefits of applying a case-by-case approach to initial licenses acquired at auction and whether it affords participants sufficient certainty to determine whether they would be allowed to hold a given license post-auction.

59. The Commission concludes that it is in the public interest to replace its post-auction case-by-case analysis of the licensing of spectrum bands through competitive bidding with a determination of whether a band-specific mobile spectrum holding limit is necessary to carry out the duties under the Communications Act and, if so, to establish an ex ante application of that limit to the competitive bidding for that band.1 The Commission finds that upfront, clear determination, instead of case-by-case analysis post-auction, would provide potential bidders with greater certainty in the auction process regarding how much spectrum they would be permitted to acquire at auction. Providing such certainty is consistent with Section 309(j)(3)(E) of the Communications Act, which emphasizes the need for clear bidding rules “to ensure that interested parties have a sufficient time to develop business plans, assess marketplace conditions, and evaluate the availability of equipment for the relevant services.”

1 In subsequent secondary market transactions, the licenses acquired at auction will be included in the application of our revised spectrum screen when the spectrum is deemed suitable and available for inclusion in the screen.

60. To the extent that the Commission adopts a mobile spectrum holding limit for the licensing of a particular band through competitive bidding, applying the limit ex ante would provide greater certainty and efficiency in the process of licensing through competitive bidding, which would be particularly important for complex auctions like the Incentive Auction. Upfront, bright-line determinations would streamline the post-auction review of license applications, which should allow winning bidders to receive their licenses more quickly and proceed to deploy service using the acquired spectrum. The application of a mobile spectrum holding limit ex ante would avoid certain challenges in trying to remedy concerns after post-auction competitive review. If the Commission were to make a finding post-auction that the acquisition of spectrum by a winning bidder would be likely to cause competitive harm, it could compel abandonment of the license application or divestiture of the license won at auction, which could create incentives for bidder behavior that would undermine the goals of the auction. Alternatively, divestiture of another license from the bidder's pre-auction spectrum holdings might not address the Commission's competitive concerns with aggregation of the spectrum made available at auction, especially if the spectrum the winning bidder would propose to divest does not have similar characteristics of the spectrum acquired in the auction.

61. The Commission finds that, for competitive review of spectrum licenses acquired through competitive bidding, the benefits of a bright-line ex ante application of a mobile spectrum holding limit to the competitive bidding for those licenses outweigh any costs associated with any perceived loss of flexibility that the existing post-auction review might afford. The Commission notes that a case-by-case review of spectrum licenses acquired through secondary markets continues to be appropriate, as discussed below.

62. The Commission finds that the determination of whether to apply any mobile spectrum holding limits to the licensing of a particular band through competitive bidding, and if so the scope of such limits and policies, should be clearly specified sufficiently in advance of the auction. This approach would afford a prospective bidder sufficient time to develop a bidding strategy based on the mobile spectrum holdings determination adopted for an upcoming auction, while allowing the Commission to consider the unique circumstances of each spectrum band auction when making its determination.

63. The Commission would evaluate a number of factors in considering whether to adopt a mobile spectrum holdings limit for the licensing of a particular band through competitive bidding and, if so, what type of limit to apply. As an initial matter, its evaluation will encompass the “broad aims of the Communications Act,” which include, among other things, preserving and enhancing competition in relevant markets, accelerating private sector deployment of advanced services, and generally managing the spectrum in the public interest. Its determination will help carry out its duties under the Communications Act, serving the public interest. Its public interest analysis in this context also may entail assessing whether a particular auction specific policy will affect the quality of communications services or result in the provision of new or additional services to consumers. Moreover, the Commission must consider any other statutory goals and directives applicable to a particular spectrum band being licensed by competitive bidding.

64. The Commission will consider whether the acquisition at auction of licenses to use a significant portion of spectrum by one or more providers would potentially harm the public interest by reducing the likelihood that multiple service providers would have access to sufficient spectrum to compete robustly in the provision of mobile telephony/mobile broadband service. This determination will be based on several factors, including total amount of spectrum to be assigned, characteristics of the spectrum to be assigned, timing of when the spectrum could be used for mobile telephony/mobile broadband services, the specific rights being granted to licensees of the spectrum, and the extent to which competitors have opportunities to gain access to alternative bands that would serve the same purpose as the spectrum licenses at issue.

B. 600 MHz Band Incentive Auction

65. For the Incentive Auction, the Commission establishes a market-based spectrum reserve of up to 30 megahertz in each license area designed to ensure against excessive concentration in holdings of low-band spectrum—a reserve that includes safeguards to ensure that all bidders bear a fair share of the cost of the Incentive Auction. The market-based reserve balances the need to meet the requirements for concluding the Incentive Auction with the competition goals discussed above.

66. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether to adopt limits on the amount of spectrum that entities could acquire in the context of spectrum auctions mandated by the Spectrum Act. In the Incentive Auction NPRM, the Commission sought comment on what, if anything, it should do to meet the statutory requirements of section 309(j)(3)(B) and promote the goals of the Incentive Auction. For instance, the Commission noted that “section 309(j)(3)(B)'s directive to avoid excessive concentration of licenses might militate in favor of a rule that permits any single participant in the auction to acquire no more than one-third of all 600 MHz Band spectrum being auctioned in a given licensed area.”

67. The amount of repurposed spectrum depends on the outcome of the reverse and forward auction components of the Incentive Auction. The reverse and forward auctions will be integrated in a series of stages. Each stage will consist of a reverse auction and a forward auction bidding process. Prior to the first stage, the initial spectrum clearing target will be determined based on broadcasters' collective willingness to relinquish spectrum usage rights at the opening prices offered to them. The first stage reverse auction bidding rounds will determine the total amount of incentive payments necessary in connection with the initial clearing target. The forward auction bidding process will follow. If the final stage rule described below is satisfied, the forward auction bidding will continue until there is no excess demand for 600 MHz Band licenses. If the final stage rule is not satisfied, additional stages will be run, with progressively lower spectrum targets in the reverse auction and less spectrum available in the forward auction until the rule is satisfied.

68. The final stage rule is a reserve price with two components, both of which must be satisfied. The first component requires that the prices for licenses in the forward auction meet or exceed a certain price benchmark to assure that prices generally reflect competitive market values for comparable spectrum licenses. The first component consists of alternative conditions, depending on the clearing target for the particular stage in which it is being applied. The alternative formulations recognize that per-unit market prices for spectrum licenses may decline consistent with an increase in supply. The price and spectrum clearing benchmarks will be established by the Commission in the Incentive Auction Procedures PN, after an opportunity for additional comment. The second component of the final stage rule requires that the proceeds of the forward auction be sufficient to meet expenses set forth in the Spectrum Act and any Public Safety Trust Fund amounts needed for FirstNet. If the requirements of both components of the reserve price are met, then the final stage rule is satisfied.

69. In the Incentive Auction Report and Order, the Commission indicates that, in the coming months, the Commission will solicit public input on final auction procedures by Public Notice (“Incentive Auction Comment PN”). This Public Notice will include specific proposals on crucial auction design issues such as opening prices, television channel assignment optimization, how much market variation to accommodate in the 600 MHz Band Plan, and benchmarks for implementing the final stage rule. Well in advance of the auction, also by public notice, the Commission will resolve these implementation issues and provide detailed explanations and instructions for potential auction participants (“Incentive Auction Procedures PN”).

1. The Need for a Market-Based Spectrum Reserve

70. Given the importance of multiple providers, including rural and regional providers, having access to below-1-GHz spectrum for deployment and competition, the Commission concludes that a clear mobile spectrum holdings policy for the Incentive Auction is necessary to increase access opportunities to the 600 MHz Band. The Commission finds that it is appropriate to adopt a market-based spectrum reserve for entities that do not currently hold a significant amount of below-1-GHz spectrum.

71. The Commission will reserve on a contingent basis, licenses covering up to 30 megahertz of spectrum for bidders with spectrum holdings, at the deadline for filing a short-form application to participate in the forward auction, of less than 45 megahertz, on a population-weighted basis, of suitable and available below-1-GHz spectrum in a PEA. All bidders, including those unable to bid on reserved licenses, will be able to bid on the unreserved licenses. The Commission specifies the maximum amount of spectrum that will be reserved in each market for eligible entities (“reserve-eligible” entities) in the forward auction under the various band plan scenarios identified in the Incentive Auction Report and Order, but the actual amount of spectrum reserved will depend on the demand by reserve-eligible bidders when the auction reaches a trigger (the “spectrum reserve trigger”). The Commission finds that this approach balances a number of the key statutory directives, including promoting competition, facilitating the deployment of advanced services by making spectrum available for flexible use, and sharing the costs of the Incentive Auction on a fair and equitable basis.

72. In reaching its decisions, the Commission must consider a number of statutory directives applicable to the Incentive Auction, including promoting competition, making spectrum available for flexible use, meeting proceeds requirements, and facilitating deployment of advanced services. With respect to promoting competition in the mobile wireless marketplace, the Commission observes that any of the types of limits discussed on the record—spectrum caps based on a provider's existing below-1-GHz holdings, equal spectrum caps for all bidders, or reserved spectrum—have the potential to promote competition by ensuring that in the near future, more providers would hold a sufficient mix of spectrum to compete robustly. The Commission finds that its market-based spectrum reserve for the Incentive Auction has distinct advantages over the other approaches with respect to the other statutory directives.

73. First, the spectrum reserve gives mobile service providers significant latitude to bid on spectrum licenses they need in each area to meet their network requirements, including providers who are unable to bid for reserved spectrum in a particular PEA. Rules that would restrict the larger providers to no more than a 5 x 5 megahertz block of 600 MHz Band spectrum do not adequately consider the needs of those providers for additional spectrum to meet the demand of their subscribers in the longer term. Nor do such rules adequately consider that efficient deployment of services using the 600 MHz Band spectrum would likely rely on ensuring that the larger as well as smaller nationwide providers having a stake in the development of equipment for the band. Spectrum caps also could affect to a certain extent mobile broadband providers' flexibility to expand services to meet increasing consumer needs.

74. Second, proposals that would set an individual spectrum cap on the amount of 600 MHz Band spectrum for which each provider could acquire licenses have greater risk of decreasing forward auction proceeds, and thus endangering its ability to repurpose spectrum, because it likely would lessen competition between the largest wireless providers for spectrum in amounts greater than the cap would permit.

75. The Commission concludes that its market-based spectrum reserve, particularly in the amounts and under the rules the Commission adopts is unlikely to reduce competition among bidders and in fact, will encourage competition among bidders wanting at least 20 megahertz of spectrum, as compared to other potential approaches to mobile spectrum holdings limits that could be applied to the Incentive Auction. Under the market-based spectrum reserve, every bidder will have the opportunity to bid for, and win, at least half of the 600 MHz Band spectrum in each market, and at some levels of spectrum made available in the forward auction, significantly more than half.

76. Third, the Commission concludes that its approach would not reduce participation in the auction by large providers to a level that would reduce the amount of spectrum that can be repurposed by the Incentive Auction. The reserved spectrum amount would be contingent upon (and subject to a reduction based on) the demand expressed in the forward auction by reserve-eligible bidders. If there is insufficient demand for reserved spectrum licenses, the amount of reserved spectrum would be reduced.

77. The Commission also finds that its market-based spectrum reserve is more likely to achieve its purposes more effectively than bidding credits based on the level of spectrum holdings. On balance, applying bidding credits based on spectrum holdings as opposed to reserving licenses for providers without significant below-1-GHz spectrum would not address the Commission's competitive concerns with aggregation of the spectrum made available at auction. The Commission notes that in the Incentive Auctions Report and Order the Commission adopted the bidding credits for the forward auction applicable to small businesses. The Commission also stated it will initiate a separate proceeding to examine its designated entity (“DE”) rules generally.

78. The Commission notes that its decision to adopt a 600 MHz Band spectrum reserve and to establish the amounts of reserved spectrum specified below is based on the current marketplace structure of the mobile wireless service industry. If significant changes in the marketplace structure occur or a proposed transaction is filed with the Commission in the future affecting the top four nationwide providers and their spectrum holdings, the Commission will revisit its decisions here regarding the reserved spectrum provisions for the 600 MHz Band that the Commission adopted. The Commission will review as well whether changes should be made to any other decisions in the R&O. The Commission also plans to consider in a Further Notice of Proposed Rulemaking possible change to certain auction rules relating to joint bidding arrangements and strategies in the Incentive Auction. In order to allow the Commission to evaluate how certain bidding arrangements might affect the Incentive Auction, potential bidders will need to file well before the normal deadlines some of the information currently required in auction and license application forms.

2. Qualification To Bid on Reserved Licenses

79. The Commission needs to facilitate access by multiple providers to below-1-GHz spectrum is the basis for its adoption of a market-based spectrum reserve for the Incentive Auction and, accordingly, the Commission finds that a provider's existing below-1-GHz holdings in a particular PEA should be the threshold basis for determining whether the provider qualifies to bid on reserved spectrum. To qualify to bid on reserved licenses in a PEA, an entity must not have an attributable interest in 45 megahertz or more, on a population-weighted basis, of below-1-GHz spectrum that is suitable and available for the provision of mobile telephony/mobile broadband services in that PEA, at the deadline for filing a short-form application to participate in the Incentive Auction. In its calculation of below-1-GHz spectrum holdings, the Commission includes not only the entity's licensed spectrum, on a county-by-county basis, but also all long-term spectrum leasing arrangements, with spectrum being attributed to both the lessee and lessor. Further, it includes in the calculations only the below-1-GHz spectrum that the Commission currently considers to be “suitable” and “available,” in the modified spectrum screen adopted today, and thus, no 600 MHz Band spectrum is included, as although it is suitable, it is not considered available until the conclusion of the Incentive Auction. The 45 megahertz of below-1-GHz spectrum approximates one-third of the 134 megahertz of below-1-GHz spectrum that the Commission counts in the modified total spectrum screen the Commission adopted. The Commission will measure an entity's spectrum holdings on a county-by-county basis within a PEA,2 and then construct a total county-population-weighted below-1-GHz spectrum holding for each entity within the PEA.3 As discussed below, even if a non-nationwide provider holds approximately one-third or more of the suitable and available below-1-GHz spectrum in a given market, it will not be precluded from bidding on reserved spectrum licenses in any market.

2 In the context of secondary market transactions review, the Commission typically measures a provider's holdings in a particular CMA based on the maximum spectrum holdings in any one county within that CMA. Unlike the screen the Commission uses for reviewing transactions, the qualification for bidding on reserved spectrum is a bright-line test, and PEAs are generally larger in geographic scope than the CMAs it uses for competitive review of transactions. Given those distinctions, the Commission finds that measuring a bidder's below-1-GHz spectrum holdings amount in a given PEA, based on the highest below-1-GHz holding amount in any one county within a PEA, would not be appropriate.

3 To determine whether an entity is qualified to bid on reserved spectrum, its below-1-GHz spectrum holdings are calculated by summing (PEA county spectrum holdings x PEA county population (using U.S. Census 2010 population data)), and then dividing that sum by the total population of the PEA. In its calculations, the Commission includes licensed spectrum, on a county-by-county basis, as well as all long-term spectrum leasing arrangements, with leased spectrum being attributed to both the lessee and lessor. In those PEAs where there are existing long-term commercial leases, as the Commission attributes the leased spectrum to both the lessee and lessor, it increases the total below-1-GHz spectrum amount included by the (population-weighted) amount of the lease so that service providers' holdings are not overstated.

80. The Commission observes that the 45 megahertz threshold (approximately one-third of total below-1-GHz spectrum) to identify those who can bid on reserved licenses is consistent with the approximately one-third threshold for total spectrum that the Commission uses to identify those holdings in local markets that may raise particular competitive concerns in the context of secondary market transactions, as discussed below. The approximately one-third threshold is, based on its experience in numerous transactions over the last decade, an effective analytical tool in the secondary market context. Similarly, the Commission concludes that a threshold of approximately one-third is an effective line of demarcation to identify those entities that currently lack significant below-1-GHz spectrum holdings and would likely benefit from access to the reserved spectrum. In particular, the Commission finds that this threshold would help to ensure that multiple providers are able to access a sufficient amount of low-band spectrum, which would facilitate the extension and improvement of service in both rural and urban areas, to the benefit of consumers.

81. Non-Nationwide Providers. The 45 megahertz holding threshold may have substantial effects on non-nationwide providers that could outweigh the intended benefits.4 In many areas, regional and local service providers offer consumers additional choices in the areas they serve and provide some constraint on the ability of nationwide providers to act in anticompetitive ways to the detriment of consumers. Although nationwide providers generally set prices on a national basis, there can be significant variation in discounts, service quality, and extent of coverage at the local level. Non-nationwide providers are also important sources of competition in rural areas, where multiple nationwide service providers may have less incentive to offer high quality services. Today, 92 percent of non-rural consumers, but only 37 percent of rural consumers are covered by at least four 3G or 4G mobile wireless providers' networks and more than 1.3 million people in rural areas have no mobile broadband access. Smaller providers in such areas are likely to be more dependent upon the efficiencies gained from the unique propagation benefits of 600 MHz spectrum because they are less able to subsidize their deployment costs by revenues accrued in more densely populated areas where a nationwide subscriber base provides them with greater scale economies. Promoting competition by non-nationwide providers also advances the statutory goals of avoiding excessive concentration of licenses, disseminating licenses among a wide variety of applicants, and encouraging rapid deployment of new wireless broadband technologies to all Americans, including those residing in rural areas.

4 In the 16th Mobile Wireless Competition Report, the Commission observed that there are four nationwide providers in the U.S. with networks that cover a majority of the population and land area of the country—Verizon Wireless, AT&T, Sprint, and T-Mobile. For purposes of this R&O, the Commission refers to other providers—with networks that are limited to regional and local areas—as “non-nationwide providers.”

82. The Commission will permit bidding on 600 MHz reserve spectrum by regional and local service providers in all PEAs, including those where such a provider holds more spectrum than its 45 megahertz holding threshold of the available low-band spectrum. The Commission establishes a bright-line rule to address these issues for the same reasons set forth above for generally adopting bright line rules on spectrum aggregation issues for its 600 MHz Incentive Auction. Non-nationwide service providers enhance competitive choices for consumers in the mobile wireless marketplace, and help promote deployment in rural areas. They also present a significantly lower risk of effectively denying access of low band spectrum to competitors in order to foreclose competition or to raise rivals' costs because of their relative lack of resources. Accordingly, the Commission concludes that non-nationwide service providers should be eligible to bid on reserved spectrum in all markets nationwide.

83. In sum, to qualify to bid on reserved licenses in a PEA, an entity must not hold an attributable interest in 45 megahertz or more of below-1-GHz spectrum in a PEA, as described above, or must be a non-nationwide provider. The Commission will revise the short-form application to provide for a certification by an applicant intending to bid on reserved spectrum that it meets the qualification criteria. If any entity plans to file a pre-auction divestiture application to come into compliance with the below-1-GHz holdings threshold, it will have to file in sufficient time to qualify by the short-form application deadline.

3. Market-Based Amount of Reserved Spectrum

84. Because the Commission will not know the exact number of blocks licensed or their frequencies until the Incentive Auction concludes, the 600 MHz Band Plan in the Incentive Auction Report and Order adopted a set of band plan scenarios that comprise the 600 MHz Band Plan, one of which will serve as the ultimate Band Plan for the 600 MHz Band. Consistent with this approach, the Commission specifies in the chart below the maximum amount of licensed spectrum that will be reserved in each market for eligible entities (“reserve-eligible” entities) in a forward auction for each indicated amount of licensed spectrum at initial stage spectrum clearing targets. A spectrum clearing target will include licensed spectrum and guard bands; the chart refers only to the amount of licensed spectrum included in each target because only licensed spectrum is relevant to determination of the reserve. Each stage of the Incentive Auction will consist of a reverse auction and a forward auction bidding process. Prior to the first stage, the Commission will determine the initial spectrum clearing target and will run additional stages if necessary. If the auction does not close in the initial stage, the maximum amount of reserved licensed spectrum in each individual market in subsequent stages will be the smaller of: (1) The maximum amount of reserved spectrum in the previous stage, or (2) the amount that the reserve-eligible bidders demand at the end of the previous stage. For example, if the initial clearing target is 100 megahertz, the maximum reserve will be 30 megahertz in the initial and subsequent stages. By contrast, if the initial spectrum clearing target is 60 megahertz, the maximum reserve in the initial and subsequent stages will be 20 megahertz. In either case, if the auction fails to close at the initial stage, the maximum reserved spectrum in each PEA at the second stage will be the smaller of the maximum reserve or the amount that reserve-eligible bidders demand at the end of the first stage in that market. Correspondingly, the amount of spectrum that an unreserved bidder may acquire in subsequent stages will depend on the amount that the bidder demanded at the end of the previous stage. The actual amount of spectrum reserved will depend on the demand by reserve-eligible bidders when the auction reaches a trigger (the “spectrum reserve trigger”). Because the actual amount of reserved spectrum depends on auction participation, the Commission calls this a “market-based spectrum reserve.”

85. In determining how much reserved and unreserved spectrum will be available, the Commission balances a number of the key statutory directives, including promoting competition, facilitating the deployment of advanced services by making spectrum available for flexible use, and sharing the costs of the Incentive Auction on a fair and equitable basis. For the reasons explained above, the Commission finds that access to licenses for sufficient spectrum in the 600 MHz Band by providers that do not already hold licenses for significant amounts of below-1-GHz spectrum is important to the preservation and promotion of competition in the mobile wireless marketplace now and in the future. At the same time, however, the Commission recognizes that the structure of the Incentive Auction presents unique challenges to the adoption of a spectrum reserve for reserve-eligible bidders. In particular, because the Incentive Auction will rely on market forces to determine the amount of spectrum licenses that will be made available in the forward auction, the Commission needs to ensure that all bidders in the forward auction bear a fair share of the clearing costs identified in the reverse auction and the other costs specified in the Incentive Auction final stage rule.

86. The amount of reserved spectrum in the Incentive Auction will depend upon bidding in the forward auction. The Commission specifies a maximum amount of reserved spectrum in the chart above, but the actual amount of spectrum available only to reserve-eligible bidders will be determined at a spectrum reserve trigger that fairly distributes the responsibility for satisfying the costs of the Incentive Auction among all bidders.

87. The Commission will set the spectrum reserve trigger at the point when the final stage rule is satisfied, so that the actual amount of reserved spectrum will be based on the quantity demanded by reserve-eligible bidders in each individual market at that point in the forward auction. The amount of reserved spectrum will be the smaller of: (1) The maximum amount of reserved spectrum for that stage, or (2) the amount demanded by reserve-eligible bidders at the trigger. The Commission intends, after opportunity for comment in the Incentive Auction Comment PN, to clarify that reserve-eligible bidders will not be able to acquire more than 20 megahertz of reserved spectrum in a market unless there is another bidder for reserved spectrum in that market. Until the spectrum reserve trigger is met, bidding for licenses in the forward auction will not distinguish between licenses for reserved and unreserved spectrum. Accordingly, all bidders will compete for generic licenses in each area—with a single price applying in each area to all the licenses in a category of generic licenses—up to the point at which the spectrum reserve trigger is reached.

88. Maximum Amount of Reserved Spectrum. The Commission sets the maximum amount of reserved spectrum at 30 megahertz for most of the potential amounts of total licensed spectrum made available in the forward auction. Setting the maximum amount of reserved spectrum at a consistent amount across most levels of total licensed spectrum will, among other things, facilitate the repurposing of more spectrum in the 600 MHz Band, because it provides the opportunity, and creates incentives, for all auction participants to bid aggressively to acquire more spectrum licenses as the total amount of available spectrum increases.

89. A 30 megahertz maximum spectrum reserve at most band clearing scenarios also benefits competition and consumers by giving reserve-eligible bidders the assurance that, after the spectrum reserve trigger is reached, they will have a greater opportunity to purchase licenses in the 600 MHz Band. At the same time, its initial maximum reserve amounts ensure that a majority of licenses at the beginning of the forward auction will be available for bidding by all participants under all circumstances. In the Incentive Auction Report and Order, the Commission determined that the 600 MHz Band will be licensed in 10 megahertz (5x5 paired) blocks. Some providers have advocated that 20 megahertz of contiguous spectrum is particularly valuable for the deployment of next-generation networks. A maximum of 30 megahertz of reserved spectrum could permit at least two reserve-eligible bidders to acquire 600 MHz spectrum licenses for deployment of next-generation networks, with one of the bidders potentially acquiring 20 megahertz of reserved spectrum for such deployment. Moreover, a maximum of 30 megahertz of reserved spectrum, an odd number of 10-megahertz blocks, will facilitate competition among bidders seeking to acquire 20 megahertz. In addition, at most levels of total licensed spectrum made available in the forward auction, a maximum of 30 megahertz of reserved spectrum will leave a significant amount of unreserved spectrum available, for which all bidders will have the opportunity to compete.

90. Accordingly, a maximum spectrum reserve of 30 megahertz for most levels of total available spectrum licenses, on balance, will make additional low-band spectrum available to multiple providers; ensure that all bidders have an opportunity to acquire a stake in the 600 MHz ecosystem that will be critical in the future; and facilitate competitive bidding. However, if the amount of licensed spectrum at the initial stage target is less than 70 megahertz, maintaining a maximum of 30 megahertz of reserved spectrum would not be in the public interest. Maintaining that amount of reserved spectrum would potentially reduce the amount of unreserved spectrum to 20 or even 10 megahertz, which the Commission deemed to be too low to provide all bidders with an adequate opportunity to acquire licenses in the 600 MHz Band.

91. Market-Based Spectrum Reserve. Under the market-based spectrum reserve rule, the amount of reserved spectrum in each individual PEA will be set at the level demanded by reserve-eligible entities at the time the spectrum reserve trigger is satisfied, up to the maximum amount of reserved spectrum at the beginning of the stage. Once the spectrum reserve is established, bidders will bid separately for generic reserved and unreserved spectrum licenses, with reserve-eligible bidders able to bid for spectrum in either category, and the other bidders able to bid only for the unreserved spectrum. For instance, if the spectrum reserve trigger is met in a stage with a maximum of 30 megahertz of reserved spectrum, if reserve-eligible bidders demand only 20 megahertz in a given PEA at those prices when the trigger is met, then 20 megahertz will be reserved.

92. The market-based reserve rule would not prevent unreserved bidders from acquiring the minimum initial stage amount of unreserved spectrum specified in the chart above in subsequent stages of the auction, provided they bid actively on that amount of spectrum throughout the auction, beginning in the first stage. For example, if an unreserved bidder demands 20 megahertz throughout the initial stage (including the extended round) but the stage fails, that bidder will be eligible to bid for 20 megahertz in the next stage. The Commission anticipates that bidding in the most urban areas is likely to be the most intense, with the highest bids, and thus that the spectrum reserve trigger mechanism the Commission ultimately adopted will mean that reserved spectrum in those areas will sell only at substantial prices.

93. The market-based reserve rule the Commission adopts balances the need to meet the requirements for concluding the Incentive Auction with the competition goals discussed above. Setting an appropriate spectrum reserve trigger for determining how much spectrum will be allotted for reserve-eligible bidders will ensure that all bidders, those eligible to bid on reserved spectrum and other bidders, contribute a fair share to the clearing costs identified in the reverse auction and the other costs specified in the Incentive Auction final stage rule. The market-based spectrum reserve leverages competition across both reserved and unreserved spectrum to provide all bidders with the incentive to bid aggressively and repurpose larger rather than smaller amounts of spectrum. Further, the contingent nature of the reserve will create reserves only in PEAs where there is sufficient demand at the point where the spectrum reserve trigger is reached. This will ensure spectrum is reserved only where there is demand at market-based prices and increase the likelihood that the auction will close at a higher spectrum target.

94. In the coming months, the Commission will solicit public input in the Incentive Auction Comment PN on procedures for implementing certain auction-related decisions made in the Incentive Auction Report and Order. Among other things, the Comment PN will seek comment on how to establish the details of a spectrum reserve trigger based on the final stage rule, in order to fairly distribute the responsibility for satisfying the costs of the reverse auction among all bidders. Among other things, the Commission will consider whether the trigger should be based solely on prices or revenues in the “major markets” and, if so, how to identify such markets. The Procedures PN will adopt the details of its spectrum reserve trigger at the same time that the Commission establishes final auction procedures and resolves crucial auction design issues, including the benchmarks required to implement the final stage rule, opening prices, and how much market variation to accommodate in the 600 MHz Band Plan.

4. Holding Period for 600 MHz Band Licenses

95. The Commission finds that certain restrictions on secondary market transactions of 600 MHz Band licenses are necessary in certain circumstances. These secondary market restrictions for 600 MHz Band licenses will not apply to exchanges of equal amounts of 600 MHz Band spectrum in the same market.

96. First, the Commission recognizes that its goal in adopting the spectrum reserve—facilitating access to 600 MHz Band licenses in order to ensure against excessive concentration in holdings of low-band spectrum—could be undermined if entities that would not be permitted to acquire reserved 600 MHz Band licenses in the auction are permitted to acquire them after the auction through secondary markets. The risk of undermining its goals for competition and the Incentive Auction must be balanced, however, against the Commission's general policy of promoting flexibility in secondary markets transactions. The Commission finds that precluding secondary market transactions of 600 MHz Band licenses for six years, which represents the interim buildout period for 600 MHz licenses, strikes the appropriate balance to preserve the integrity of its market-based spectrum reserve while still permitting some flexibility in secondary markets transactions. Accordingly, the Commission concludes that, for a period of six years, entities that acquired reserved spectrum licenses in the Incentive Auction cannot assign or transfer those licenses to, or enter into long-term leases regarding those licenses with, entities that would not have been in compliance with the reserve-eligible entity requirements on the date the short form application was due for the Incentive Auction.

97. In addition, the Commission notes that its decision to adopt a holding period reflects its continuing efforts to avoid excessive concentration of licenses not only as a result of the Incentive Auction, but also to ensure that secondary market transactions do not frustrate the underlying public interest goals of its mobile spectrum holdings policies for this band. Aggregation of 600 MHz Band spectrum by means of secondary market transactions has the potential to further exacerbate its concerns about below-1-GHz spectrum license concentration, which must be balanced against the Commission's general policy of promoting flexibility in secondary market transactions. Accordingly, the Commission will prohibit any transfer, assignment, or long-term leasing of any 600 MHz Band licenses (including unreserved 600 Band licenses) for a period of six years post-auction that would result in the acquiring entity holding approximately one-third or more of suitable and available below-1-GHz spectrum post-transaction. Given that this limit is a bright-line prohibition, the acquiring entity's below-1-GHz spectrum holdings will be determined by a population-weighted methodology.

5. Further Implementation Issues

98. The Commission will seek comment in the Incentive Auction Comment PN on any further implementation issues that may affect its market-based spectrum reserve, and whether and if so how the policies and rules the Commission adopted should apply or be adjusted based on any auction details that might be relevant to the process (e.g., auctioning impaired spectrum blocks). The Commission will resolve any relevant further implementation in the Incentive Auction Procedures PN.

6. Legal Authority

99. Section 6404 of the Spectrum Act, codified at 47 U.S.C. 309(j)(17), provides that the Commission may not “prevent” a person who is otherwise qualified from “participating in a system of competitive bidding” under Section 309(j). However, Section 6404 further provides that “[n]othing in [the foregoing restriction] affects any authority the Commission has to adopt and enforce rules of general applicability,” including without limitation “rules concerning spectrum aggregation that promote competition.”

100. The Commission finds that its adoption of reserved spectrum for the Incentive Auction is fully consistent with its authority under Title III and the Spectrum Act. The market-based spectrum reserve that the Commission adopted are “rules of general applicability” that fall under the Spectrum Act's savings clause codified at 47 U.S.C. 309(j)(17)(B). The term “rule of general applicability” is a term of art; it has an established meaning under the Administrative Procedure Act. “In the absence of contrary indication, the Commission assumes that when a statute uses . . . a term [of art], Congress intended it to have its established meaning.” The established meaning of the term “rule of general applicability” is a rule that is not party-specific, that is, not a “rule of particular applicability.” It is to be contrasted with, for example, a named telephone company's rate of return. The rule that the Commission adopted would be triggered by the amount of an entity's below-1-GHz spectrum holdings; depending upon the particular geographic market, eligibility to bid for the reserved spectrum may vary. And the mere fact that, in a particular PEA, a specific person would not be so eligible does not render the rule one of particular applicability. Even a general rule must have potential particular effect—otherwise every rule would be ineffective. For similar reasons, it need not apply on an industry-wide basis, or apply to all Commission auctions. Because the rule that the Commission adopted applies to any entity that has the general characteristics identified in the rule, the rule is not party-specific.

101. In addition, by expressly stating that “[n]othing in subparagraph (A) affects any authority the Commission has to adopt and enforce . . . rules concerning spectrum aggregation that promote competition[,]” Section 309(j)(17)(B) preserves the Commission's long-standing authority under Title III of the Communications Act to adopt “rules concerning spectrum aggregation that promote competition.” Over the past three decades that the Commission has licensed mobile wireless spectrum, Title III authority has been the basis for several restrictions that the Commission has adopted regarding spectrum aggregation, including ex ante limitations. The Court of Appeals for the District of Columbia Circuit has affirmed that Title III grants the Commission “expansive authority” to regulate mobile wireless licenses, and that authority includes its power to regulate spectrum concentration in mobile wireless markets.

102. Because the rules the Commission adopted today fall squarely under the historical authority of the Commission under Title III as preserved by subparagraph (B), the new prohibition created in subparagraph (A) is not applicable. In other words, the Commission interprets Section 6404 to preserve the Commission's authority to adopt rules of general applicability regarding spectrum aggregation, without regard to whether such rules prevent participation in a system of competitive bidding.

103. Even if subparagraph (A) were to apply to an ex ante reservation of spectrum, the market-based spectrum reserve that the Commission adopted does not violate that provision because it would not “prevent” any entity “from participating” in a “system of competitive bidding.” Supreme Court precedent compels us to interpret these terms according to their ordinary meaning. The ordinary meaning of “prevent” is “to stop someone from doing something,” and the ordinary meaning of “participate” is “to take part” or “to have a part or a share in something.” Thus, the ordinary meaning of the phrase “prevent . . . from participating,” in context, is that the Commission may not stop a person who is otherwise qualified from taking part in a system of competitive bidding.

104. The term “a system of competitive bidding” is also a term of art that refers broadly to the process for granting licenses through competitive bidding, including, identifying classes of licenses to be assigned by auction, specifying eligibility and other characteristics of such licenses, and designing the methodologies to be used for competitive bidding for particular licenses. Thus, participation in a “system of competitive bidding” does not mean that every entity must be able to participate in the bidding for every single license or spectrum block that may be available in an auction.

105. The market-based spectrum reserve the Commission adopted will permit all bidders to bid for some spectrum licenses in every market, while reserving certain spectrum blocks for providers with existing holdings of below-1-GHz spectrum of less than 45 megahertz. In a single PEA, under every band scenario there will be at least as much unreserved as reserved spectrum, and in some scenarios from two to three times as much. Its action will satisfy its statutory mandate to promote very broad participation in its systems of competitive bidding by current providers of mobile services and potential entrants into the wireless data and telephony marketplace.

106. Finally, the Commission determined that it is clear from the plain text of Section 309(j)(B)(17) that the Commission has the authority to adopt the market-based spectrum reserve in its design of a system of competitive bidding. Accordingly, the Commission concluded that the market-based spectrum reserve that the Commission adopted does not prevent any person from participating in its system of competitive bidding in a manner contrary to the Spectrum Act.

107. The Commission disagrees with arguments that it did not provide adequate notice under the APA. First, the Commission inquired about an ex ante restriction in the Incentive Auctions NPRM, observing that “section 309(j)(3)(B)'s direction to avoid excessive concentration of licenses might militate in favor of a rule that permits any single participant in the auction to acquire no more than one-third of all 600 MHz spectrum being auctioned in a given license area.” The rule that the Commission adopted is a “variatio[n] of that approach,” on which the Commission also sought comment. It would prevent providers in certain circumstances from bidding on reserved 600 MHz spectrum in some PEAs in the Incentive Auction. However, all providers will be permitted to bid on more than one-third of the available spectrum in any PEA. In addition, the Commission specifically asked about adoption of a bright-line limits approach in the Mobile Spectrum Holdings NPRM, including limits on holdings below 1 GHz and band-specific limits. Applying a 600 MHz limit applicable only to bidders with significant holdings below 1 MHz also is a logical outgrowth of issues identified in the NPRM. Where the Commission asked about a one-third limit, it did so “[a]s [an] example.” The Commission finds that the market-based spectrum reserve the Commission adopted is consistent with the Spectrum Act and with its general authority under Title III and was adequately noticed under the APA.

C. AWS-3 Auction

108. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether to adopt limits on the amount of spectrum that entities could acquire in the context of spectrum auctions mandated by the Spectrum Act. In the AWS-3 NPRM, the Commission sought comment on whether and how to address the mobile spectrum holdings issues to meet its statutory requirements pursuant to section 309(j)(3)(B) and its goals for the AWS-3 bands.

109. The Commission finds that, on balance, it is not in the public interest to adopt a band-specific mobile spectrum holdings limit for the AWS-3 auction. Nothing in the record indicates that without such a limitation, opportunities for access to spectrum with similar characteristics would be significantly constrained. In particular, the Commission emphasizes the availability of a substantial amount of comparable high-band spectrum to competitors and the significant existing holdings of multiple providers of comparable spectrum. In addition, with rising demand for mobile broadband services, increasing network capacity is important to all providers, and above-1-GHz spectrum is particularly suitable for such needs. The 65 megahertz of AWS-3 spectrum that the Commission plans to auction have the potential to allow for greater network capacity for all providers to meet this demand.

110. The Commission notes that multiple providers currently have access to bands comparable to AWS-3. Moreover, each of the four nationwide providers holds a significant amount of this spectrum. This is unlike the case with the 600 MHz Band, which has fewer “coverage band” substitutes (700 MHz and 800 MHz). Moreover, in contrast to bands comparable to AWS-3, the bands comparable to the 600 MHz Band are held by a limited number of service providers. Accordingly, while it is necessary to adopt a 600 MHz Band specific spectrum holding policy, such an approach is not necessary for the AWS-3 auction.

IV. Secondary Market Transactions

111. The Commission articulated its framework for a case-by-case review for the first time in analyzing the Cingular-AT&T Wireless transaction in 2004. In particular, in that context and in its analysis of subsequent proposed transactions, the Commission used an initial screen to help identify for case-by-case review local markets where changes in spectrum holdings resulting from the transaction may be of particular concern. For transactions that result in the acquisition of wireless business units and customers or change the number of firms in any market, the Commission also applies an initial screen based on the size of the post-transaction HHI of market concentration and the change in the HHI. As set out in various transactions orders, however, the Commission has not limited its consideration of potential competitive harms solely to markets identified by its initial screen, if it encounters other factors, such as increased aggregation of below-1-GHz spectrum that may bear on the public interest inquiry.

112. The Commission finds that it is in the public interest to retain its current case-by-case review for secondary market transactions. The Commission will also retain its current product and geographic market definitions. The Commission will continue to apply the spectrum screen on a county-by-county basis to identify those CMAs where an entity would hold approximately one-third or more of the total spectrum that is suitable and available for the provision of mobile telephony/broadband services post-transaction, and will evaluate these markets for any competitive harm. Further, the Commission will continue to evaluate the likely competitive effects of increased aggregation of below-1-GHz spectrum, and in particular, will pay specific attention to those markets in which a proposed transaction would result in a service provider holding approximately one-third or more of suitable and available below-1-GHz spectrum post-transaction. Moreover, the Commission finds that it is in the public interest not to limit its analysis of potential competitive harms to solely those markets identified by the initial screen, if the Commission encounters other factors that may bear on the public interest inquiry.

A. Case-by-Case Review vs. Bright Line Limits

113. In the Mobile Spectrum Holdings NPRM, the Commission observed that the case-by-case approach to proposed transactions review affords the Commission flexibility to consider the unique circumstances of a proposed transaction and the changing needs of the mobile wireless marketplace generally, and to tailor remedies to the specific harm and circumstances. At the same time, however, the Commission noted that case-by-case review is both time- and resource-intensive, and has been criticized for creating uncertainty as to whether a particular transaction will be approved. The Commission sought comment on the costs and benefits of its case-by-case review and whether the review of proposed transactions could be more transparent, predictable, or better tailored to promote its goals. The Commission asked if bright-line limits, similar to the CMRS spectrum cap eliminated in 2003, would better serve the public interest.

114. The Commission finds that it is in the public interest to continue to use its initial spectrum screen and case-by-case analysis to evaluate the likely competitive effects of increased spectrum aggregation through secondary market transactions, rather than to adopt a bright-line limit. It observes that the fundamental principles that the Commission articulated in eliminating the spectrum cap in favor of a case-by-case approach to transactions review continue to apply today. Moreover, in the context of transactions review, the Commission is concerned that ex ante limits on spectrum aggregation may prevent transactions that are in the public interest. The Commission has found that in reviewing secondary market transactions, the complex technical, strategic, and economic factors that determine the likely competitive effects of increased spectrum aggregation require a case-by-case assessment.

115. The Commission distinguishes its decision to retain case-by-case review for spectrum acquisitions through transactions from its determination above that any mobile spectrum holding limit applied to auctions should be a bright-line rule. The unique circumstances typically associated with spectrum auctions, particularly the time constraints and the need for certainty for each bidder regarding which licenses it would be permitted to acquire at the auction, make case-by-case analysis challenging in the auction context.

B. Market Definitions

116. The Commission considers whether to modify the current market definitions that the Commission uses in its competitive analysis for proposed secondary market transactions. The Commission concludes that it is in the public interest to retain the current product market definition and the current geographic market definition.

118. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether the product market definition should be modified to reflect differentiated service offerings, devices and contract features, for instance, or whether smaller sub-markets should be defined within a larger market. The Commission also sought comment on the costs and benefits of any potential modifications.

119. The Commission retains the current product market definition. The Commission does not find sufficient evidence in the record to support a change in the current product market definition. The Commission finds that the current product market definition, “mobile telephony/broadband services,” continues to encompass the mobile voice and data services that are provided today, and is sufficiently flexible to reflect emerging, next-generation wireless services. The Commission did not find evidence in the record to convince us that the current definition has been defined too broadly or too narrowly for purposes of its competitive analysis. As set out in prior transactions, the product market the Commission defined encompasses differentiated services (e.g., voice-centric or data-centric), devices (e.g., feature phone, smartphone, tablet, etc.), and contract features (e.g., prepaid vs. postpaid). While such distinctions may suggest the possibility of smaller markets nested within that larger product market, the Commission finds it unnecessary to define such smaller product markets in order to analyze the potential competitive effects of secondary market transactions. The Commission will continue to consider these aspects of product differentiation, as appropriate, when the Commission analyzes the competitive effects of the proposed secondary market transaction within the markets the Commission defined. Therefore, the Commission finds it is in the public interest to retain the current product market definition.

2. Relevant Geographic Market

120. In its recent transactions orders, the Commission has found that the relevant geographic markets for certain wireless transactions generally are local, while also evaluating a transaction's competitive effects at the national level where a transaction exhibits certain national characteristics that provide cause for concern. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on the appropriate geographic market definition to use when evaluating a licensee's mobile spectrum holdings, under either its current case-by-case analysis or if bright-line limits were adopted.

121. The Commission finds for purposes of evaluating the competitive effects of proposed transactions it will continue to use local geographic markets, but also will analyze potential national effects as appropriate. The Commission continues to find that most consumers use their mobile telephony/broadband services at or close to where they live, work, and shop, in support of its decision that local markets are the relevant geographic markets in which to analyze the potential for competitive harms as a result of certain wireless transactions. Certain elements of the provision of mobile wireless services are national in scope, including key variables such as pricing, development of equipment, and service plan offerings, and nothing in the record suggests that the basis for this finding has changed. The Commission also will continue therefore to analyze the potential competitive effects of those wireless transactions that exhibit national characteristics, such as increased spectrum aggregation in many local markets across the country with the implication that harms that may occur at the local level collectively could have nationwide competitive effects.

C. Applicable Spectrum Holdings Threshold

122. In 2004 the Commission established a spectrum screen threshold of approximately one-third of suitable and available spectrum that would be held by the acquiring entity post-transaction. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether one-third is still the appropriate threshold generally, and whether a higher threshold should apply in rural areas.

123. The Commission will retain the approximately one-third threshold for applying its initial spectrum screen. Based on its experience in applying this threshold in numerous transactions over the last decade, the Commission has found it to be an effective analytical tool in helping to identify individual markets where a proposed transaction may raise particular competitive concerns. In its application of the screen, the Commission includes not only the entity's licensed spectrum, on a county-by-county basis, but also all long term spectrum leasing arrangements, with spectrum being attributed to both the lessee and lessor.

124. The Commission finds that even where one entity holds approximately one-third of suitable and available spectrum, a market may contain more than three viable competitors. Its goal is not to equalize the amount of spectrum held by each competitor in each market. Increasing the threshold, would not be in the public interest.

125. The Commission also disagrees with AT&T's assertion that the Commission can increase the spectrum screen threshold because the costs of “false positive” errors—chilling innovation and investment, and an inefficient use of the Commission's resources—outweigh the costs of “false negative” errors because spectrum acquisitions that would harm competition would be remedied by other Federal agencies (e.g., DOJ). As the Commission previously has stated in the context of orders addressing proposed transactions, its competitive analysis, which forms an important part of the public interest evaluation, is informed by, but not limited to, traditional antitrust principles.

126. In addition, the Commission declines to adopt a spectrum screen threshold based on spectrum share HHIs finding that to do so would mark a substantial departure from its traditional approach that is not supported by the record. The Commission does not believe the record demonstrates the efficacy of applying an HHI analysis to an input market, and believes establishing such a requirement would be burdensome and create substantial uncertainty.

127. The Commission declines to establish a higher spectrum screen threshold for rural markets. In rural areas there are significant benefits to consumers of facilitating access by multiple providers to sufficient spectrum, such that they are able to provide an effective competitive constraint. To the extent there are unique considerations in a particular rural market such that spectrum aggregation above the spectrum screen is in the public interest; its case-by-case analysis provides the Commission the flexibility to approve such a transaction.

128. Accordingly, the Commission will continue to apply an approximately one-third spectrum screen threshold in its review of secondary market spectrum acquisitions. Specifically, the modified spectrum screen the Commission adopted would include 580.5 megahertz of spectrum, with a trigger of 194 megahertz, or approximately one-third of the suitable and available spectrum. The spectrum screen is triggered where the Applicants would have, on a county-by-county basis, an attributable interest in 194 megahertz or more of spectrum where both AWS-1 and BRS/EBS spectrum are available in the particular market. If AWS-1 and/or BRS/EBS spectrum are not available in that market, these bands are not counted for purposes of applying the spectrum screen trigger in that market.

D. Operation of the Spectrum Screen

129. As set out in various transactions orders, the Commission has not limited its consideration of potential competitive harms solely to markets identified by its initial screen, if it encounters other factors that may bear on the public interest inquiry. For example, the Commission has considered below-1-GHz concentration, and concentration within a particular spectrum band, including a band that was not at the time included in the spectrum screen. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on establishing a higher burden of proof for the approval of proposed transactions that would exceed the relevant spectrum threshold.

130. The Commission will continue to review on a case-by-case basis those markets in which an entity would exceed the initial spectrum screen if the transaction as proposed were approved. The Commission declines to establish a rebuttable presumption, finding it would unnecessarily limit the Commission's flexibility. Further, the Commission affirms the Commission's conclusions that its consideration of potential competitive harms resulting from a proposed spectrum acquisition in the secondary market should not be limited solely to markets identified by the initial screen, if the Commission encounters other factors that may bear on its public interest inquiry. For instance, the Commission has specifically analyzed the potential competitive effects of aggregation of spectrum below 1 GHz. The Commission finds, in light of current marketplace conditions, that access by multiple service providers to sufficient spectrum below 1 GHz will preserve and promote competition in the mobile wireless marketplace to the benefit of American consumers, and therefore find that further significant aggregation of below-1-GHz spectrum holdings in secondary market transactions will be subject to enhanced review in its case-by-case competitive evaluation, as discussed below.

131. While the Commission recognizes that a safe harbor would provide greater certainty to applicants, just as a bright-line limit would provide greater certainty, the Commission finds that in the context of secondary market transactions, it is in the public interest to maintain flexibility to consider any factors presented that may bear on our review. Moreover, in the absence of such flexibility, the Commission's review of future proposed transactions would be limited by its understanding of technology and industry practices at the time it adopted the specific thresholds. The Commission finds that its articulation of factors it will consider in its case-by-case analysis as set forth below provides sufficient clarity to potential applicants, while maintaining flexibility to consider changes in technology and industry practices in the rapidly-evolving mobile wireless marketplace.

132. The Commission distinguishes its decision not to adopt a safe harbor for case-by-case review of spectrum acquisitions through transactions from its determination above that any mobile spectrum holdings limit applied to auctions should be a bright-line rule. The unique circumstances typically associated with spectrum auctions, particularly the time constraints and the need for certainty for each bidder regarding which licenses it would be permitted to acquire at the auction, make case-by-case analysis challenging in the auction context.

E. Nationwide Screen

133. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether, in addition to the spectrum screen applied on a county-by-county basis in helping to identify local markets of particular competitive concern, it should also adopt a separate screen that would be applied on a nationwide basis.

134. The Commission declines to establish a separate screen as a means to evaluate spectrum holdings at the nationwide level. The Commission finds it would either be redundant or create irrational incentives for providers to divest or to forego acquisition of spectrum in markets in which there would be a net public benefit from such an acquisition. However, as certain elements of the provision of mobile wireless services are national in scope, including key variables such as pricing, development of equipment, and service plan offerings, the Commission will continue to analyze the potential competitive effects of those secondary market transactions that exhibit national characteristics. Increased spectrum aggregation in many local markets across the country may imply that harms that occur at the local level collectively could have nationwide competitive effects. The Commission finds that it is in the public interest to continue to define local geographic markets but also to analyze potential national effects as appropriate.

F. Distinguishing among Spectrum Bands for Transactions Review

135. In recent years, the Commission has considered below-1-GHz spectrum concentration as a factor in its review of spectrum acquisitions in the secondary market. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether it should adopt a separate screen for below-1-GHz spectrum under which an entity that would hold, post-transaction, approximately one-third or more of the relevant spectrum below 1 GHz in a geographic market would be subject to a more detailed competitive review in that market. The Commission also sought comment on whether, alternatively, it should establish a bright-line limit for spectrum holdings below 1 GHz, whether it should assign different weights to each of the spectrum bands as part of its case-by-case review, or whether it should take any other action to recognize distinctions between spectrum bands in its competitive review of proposed transactions.

136. The Commission declines to adopt a separate screen or bright-line limit for below-1-GHz spectrum holdings, or a set of weighting factors for each spectrum band included in its initial spectrum screen. Post-transaction below-1-GHz spectrum holdings will be an enhanced factor under its case-by-case review.

1. Below-1-GHz Limit

137. Several commenters assert that the Commission should supplement the total spectrum screen applied to transactions with a screen or a bright-line limit for below-1-GHz spectrum, ranging from 25 percent to 40 percent.

138. The Commission adopts a market-based spectrum reserve for the Incentive Auction and to set limitations on the assignment or transfer of 600 MHz licenses after the Incentive Auction. These actions will help to ensure that multiple providers are able to access a sufficient amount of low-band spectrum, which will facilitate the extension and improvement of service in both rural and urban areas, to the benefit of consumers. In light of these actions, the Commission concludes that it is not necessary at this time to adopt a separate screen or cap applicable to its evaluation of the assignment or transfer of below-1-GHz spectrum. Nonetheless, the Commission will continue to evaluate below-1-GHz holdings as a factor in its case-by-case review of such transactions, consistent with the Commission's precedent in the past few years. Moving forward, post-transaction below-1-GHz spectrum holdings will become an enhanced factor in its competitive evaluation, as discussed below, and therefore, the Commission will apply particular focus to its review of this factor as the Commission evaluated the likelihood of potential competitive harms.

2. Spectrum Weighting

139. Background. Several commenters, including Sprint, assert that the Commission should weight spectrum bands to reflect the extent to which spectrum at that frequency yields lower costs for the deployment and operation of equipment. Other approaches to weighting raised on the record include using price data from spectrum auctions and secondary market transactions. Others contend that spectrum weighting would distort the Commission's analysis of the competitive effect of proposed transactions and is otherwise impractical to implement. Sprint argues that weight spectrum should be based on the cost to deploy and operate using a particular band, arguing that low-band spectrum is typically significantly more cost-effective to deploy than higher-frequency spectrum.

140. The Commission finds that, in principle, spectrum weighting has the potential to enhance its competitive analysis of proposed spectrum acquisitions. However, the Commission concludes that, at this time, it cannot justify, on the basis of the record, adopting specific weighting factors for each spectrum band. Nonetheless, the Commission observes that the data submitted on the record does demonstrate that there are significant differences in deployment costs between low-band and high-band spectrum, and it is able to consider those differences as a key factor in its case-by-case analysis moving forward.

141. The Commission finds that to establish specific weighting factors for each spectrum band based on band-specific signal propagation characteristics raises certain issues, including the underlying assumptions that are appropriate to make. Further, the Commission finds that establishing specific weighting factors based on other factors, such as the “value” of the spectrum, also raises certain issues as prices paid at auction vary significantly over time based on a variety of factors not necessarily related to the characteristics of the spectrum being auctioned. The Commission finds that treating below-1-GHz spectrum concentration as an enhanced factor in its case-by-case analysis is a better approach at this time because it is able to distinguish between the characteristics of different frequency bands without imposing a weighting schema that may fail to accurately reflect their competitive significance. Based upon the record in this proceeding, the Commission concludes that adopting a spectrum weighting schema would not be in the public interest at this time.

G. Factors Considered in Competitive Analysis

142. Background. In its evaluation of proposed secondary market transactions, the Commission broadly assesses whether and to what extent proposed acquisitions of wireless spectrum could affect downstream competition in the mobile telephony/broadband services marketplace. In particular, the Commission's competitive analysis of wireless transactions focuses initially on those markets identified by the screen where the acquisition of customers and/or spectrum would result in significant concentration of either or both, and thereby could lead to competitive harm. As discussed above, however, the Commission has not limited its consideration of potential competitive harms solely to markets identified by its initial screen if it encounters other factors that may bear on the public interest inquiry. Specifically, the Commission has considered concentration of below-1-GHz holdings, and concentration of spectrum within a specific band.

143. In its transactions analyses, the Commission has considered various other factors that help to predict the likelihood of competitive harm post-transaction. These competitive variables include, but are not limited to: The total number of rival service providers; the number of rival firms that can offer competitive nationwide service plans; the coverage by technology of the firms' respective networks; the rival firms' market shares; the combined entity's post-transaction market share and how that share changes as a result of the transaction; the amount of spectrum suitable for the provision of mobile telephony/broadband services controlled by the combined entity; and the spectrum holdings of each of the rival service providers. The Commission notes that it is important to recognize that many transactions are more than spectrum transfers; they involve the disappearance of a separate business enterprise as an ongoing potential competitive constraint and source of innovations in services and marketing.

144. In the Mobile Spectrum Holdings NPRM, the Commission asked if it should adopt guidelines setting forth the factors that will be considered during any review of a licensee's mobile spectrum holdings or delegate authority to the Wireless Telecommunications Bureau to do so.

145. Discussion. The Commission retains the authority to consider all factors that could affect the likely competitive impact of proposed transactions, and declines to adopt a formal set of guidelines at this time. It does not find sufficient evidence in the record to support the adoption of the specific standards advocated by commenters regarding spectrum utilization or spectrum weighting. Nonetheless, the Commission retains the right to consider such factors in specific future transactions. In addition, parties are free to bring such matters to the Commission's attention. It affirms its continued use of the factors considered in the Commission's case-by-case analyses to date of the potential competitive impacts of further concentration of spectrum in particular markets. The Commission continues to hold the view that band concentration may be a relevant factor to consider in its case-by-case analysis, and recognize that changes in technology and the marketplace may result in band-specific concentrations warranting increased scrutiny.

146. Certain frequencies possess distinct characteristics for the provision of mobile wireless services, and a service provider is best positioned if it holds spectrum licenses for both low- and high-band spectrum. The Commission finds that spectrum holdings by service provider in the limited low- (i.e., below-1-GHz) bands have become particularly concentrated. The Commission has concerns about the potential effects of further concentration of below-1-GHz spectrum on competition and innovation in the mobile wireless services marketplace. The Commission decided not to adopt a separate below-1-GHz screen or cap at this time. Building on the Commission precedent in the past few years, however, it will treat certain further concentration of below-1-GHz spectrum as an enhanced factor in its case-by-case analysis of the potential competitive harms posed by individual transactions.

147. The Commission currently considers a variety of factors in its case-by-case analysis of spectrum acquisition through transactions-including, but not limited to the total number of rival service providers; the number of rival firms that can offer competitive service plans; the coverage by technology of the firms' respective networks; the rival firms' market shares; the amount of spectrum suitable for the provision of mobile telephony/broadband services controlled by the combined entity; the spectrum holdings of each of the rival service providers; the acquisition of below-1-GHz spectrum nationwide; and concentration in a particular band with an important ecosystem. In analyzing spectrum acquisitions based on these factors, the Commission generally determines, based on the totality of the circumstances, whether there is an increased ability or incentive for the acquiring firm to successfully raise prices or otherwise engage in anti-competitive behavior. The Commission then employs a balancing test weighing any potential public interest harms against any potential public interest benefits, and the applicants bear the burden of proving, by a preponderance of the evidence, that the proposed transaction, on balance, will serve the public interest.

148. In implementing this approach going forward, the Commission anticipates that any entity that would end up with more than one third of below-1-GHz spectrum as a result of a proposed transaction would facilitate its case-by-case review with a detailed demonstration regarding why the public interest benefits outweigh harms. When the other factors the Commission ordinarily considers indicate a low potential for competitive or other public interest harm, the acquisition of below-1-GHz spectrum resulting in holdings of approximately one-third or more of such spectrum will not preclude a conclusion that a proposed transaction, on balance, furthers the public interest. Absent that, however, any transaction that would result in an entity holding approximately one-third or more of suitable and available below-1-GHz spectrum will more likely be found to cause competitive harm in its case-by-case review.

149. Consistent with its overall concerns about the potential public interest harms regarding the concentration of below-1-GHz spectrum, the Commission anticipates it likely would have even greater concerns where the proposed transaction would result in an assignee or transferee that already holds approximately one-third or more of below-1-GHz spectrum in a market acquiring additional below-1-GHz spectrum in that market, especially with regard to paired low-band spectrum. In these cases, the demonstration of the public interest benefits of the proposed transaction would need to clearly outweigh the potential public interest harms associated with such additional concentration of below-1-GHz spectrum, irrespective of other factors. For instance, applicants could provide a particularly detailed showing in such cases that they currently are maximizing the use of their spectrum and how the proposed transaction is necessary to maintain, enhance, or expand services provided to consumers. The Commission believes such a showing would be required to achieve its goal of ensuring that the ability of rival service providers to offer a competitive response to any price increase or to offer new innovative services is not eliminated or significantly lessened.

150. The Commission finds that considering additional below-1-GHz spectrum concentration as an enhanced factor in its review of secondary market transactions will help ensure that further concentration of such spectrum will not have adverse competitive effects either in particular local markets or on a broader regional or national level.

151. In addition, although the Commission declines to adopt specific weighting factors for each band, or for groups of bands, it recognizes that differences between spectrum bands can be relevant to a determination of the public interest in the context of reviewing transactions. It will consider such differences in its case-by-case review of specific transactions. For example, applications involving small amounts of high-band spectrum, particularly EBS spectrum, likely would present limited potential for public interest harms.

H. Remedies

152. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on the remedies, including divestitures that would be appropriate for it to prevent competitive harm resulting from spectrum acquisitions. In particular, it sought comment on whether different approaches or types of divestures would best serve the Commission's goals, and whether the Commission should adopt different criteria for divestiture based on whether the spectrum to be divested is from lower or upper frequency bands or is immediately “useable” by another licensee. It sought comment on the extent to which the Commission should remedy the potential harms posed by a transaction by placing other conditions, such as, for example, requirements to offer leasing, roaming or collocation, in conjunction with, or in lieu of, requiring divestitures.

153. Based upon the record in this proceeding, the Commission believes it is unnecessary to change its existing approach to protecting and promoting the public interest, including competition, through the application of transaction-specific remedies. Its case-by-case analysis allows the Commission to carefully tailor remedies that address and ameliorate public interest harms or alternatively ensure that proposed public interest benefits are realized by consumers. The Commission does not believe, and the record does not indicate, that the narrowly-tailored, fact-specific remedies it has required in recent transactions have discouraged transactions that generally are in the public interest, and it does not conclude that any greater specificity with regard to remedies would significantly affect parties' willingness to enter into transactions. The Commission finds that the public interest benefits and public interest harms often are specific to each transaction, and that limiting possible remedies ex ante would undercut the benefits of case-by-case review, that is, the tailoring of the review, and remedies, to the specific circumstances of any given transaction. The Commission does not see any evidence in the record that the use of tailored remedies has inhibited competitiveness-enhancing transactions, and it finds that there are the pro-competitive effects of the Commission's policies on remediation. The Commission declines to limit possible remedial action as AT&T suggests. The Commission's public interest analysis, which considers the near and long-term competitive effects of spectrum aggregation, and which may have an impact beyond the local markets involved should not be limited to a particular geographic location or spectrum band in proposing remedies to protect the public interest.

V. Attribution of Interests in License Holdings

154. In the Mobile Spectrum Holdings NPRM, the Commission proposed to codify the attribution threshold and sought comment on proposed section 20.21 of the Commission's Rules, which would apply to mobile spectrum holdings. Pursuant to the proposal, all controlling interest and non-controlling interests of ten percent or more would be attributable. In addition, non-controlling interests of less than ten percent would be attributable if the Commission determined that the interest confers de facto control, including but not limited to partnership and other ownership interests and any stock interest in a licensee. The Commission also sought comment on whether to include a specific waiver provision if it codified the rule. In addition, consistent with its current practice, the Commission proposed to attribute long-term de facto transfer leasing arrangements and long-term spectrum manager leasing arrangements to the lessees, lessors, sublessees, and sublessors.

155. The Commission finds insufficient evidence in the record to support any modifications to its current practices for attribution. The Commission has developed its current practices over the years through its case-by-case review of secondary market transactions and related transfer of control applications. Therefore, the Commission finds that retaining the current ten percent attribution threshold will serve the public interest. Accordingly, all controlling interests and non-controlling interests of ten percent or more would be attributable. In addition, interests of less than ten percent would be attributable if the interest confers de facto control, including but not limited to partnership and other ownership interests and any stock interest in a licensee. The Commission also codifies these rules for purposes of determining spectrum holdings amounts before an auction. The Commission finds that codifying the rules will provide additional transparency and clarity for applicants and prospective auction participants. The Commission also concludes that the general waiver standard provided in Section 1.925 of the Commission's rules provides sufficient guidance for applicants seeking to waive of these attribution rules.

156. Consistent with its current practice, the Commission also attributed long-term de facto transfer leasing arrangements and long-term spectrum manager leasing arrangements to the lessor and the lessee, including sublessors and sublessees. Spectrum leasing arrangement are arrangements between a licensed entity and a third-party entity in which the licensee leases certain of its spectrum usage rights in the licensed spectrum to the third-party entity, the spectrum lessee. Leasing provides lessees the flexibility to lease a small or large quantity of spectrum for short or longer time periods depending on their business needs. The Commission will attribute only the long-term spectrum leasing arrangements, with limited exceptions, to both lessee and lessor. The attribution rule will apply to determine partial ownership and other interests in spectrum holdings for purposes of: (1) Applying a mobile spectrum holding limit to the licensing of spectrum through competitive bidding; and (2) applying the initial spectrum screen to secondary market transactions. Consistent with current practices, if, after applying the initial screen, the Commission's analysis of a particular market reveals concerns with respect to attribution due to a particular organizational or financial relationship, it may evaluate such relationships in the context of the relevant secondary market transaction.

VI. Procedural MattersA. Final Regulatory Flexibility Analysis

157. The Regulatory Flexibility Act (RFA) requires that agencies prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the R&O on small entities.

158. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking. The Wireless Telecommunications Bureau (WTB) sought written public comment on the proposals in the Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

159. The Commission believes that it would serve the public interest to analyze the possible significant economic impact on small entities of the policy and rule changes in the R&O. Accordingly, this FRFA contains an analysis of this impact in connection with the adoption in the R&O of mobile spectrum holdings rule changes meant to protect and promote competition for the benefit of consumers, while facilitating greater transparency and predictability to better allow service providers to make investment and transactional decisions.

B. Need for, and Objectives of, the Report and Order

160. The Commission is under a Congressional mandate to manage spectrum to promote economic opportunity, competition, innovation, and service accessibility. In the wake of recent industry trends, both in service evolution and marketplace structure, the Commission has revisited its mobile spectrum holdings rules and policies. The Commission adopts several mobile spectrum holdings policies today: Entering the spectrum screen into FCC rules; specifying which spectrum blocks are included in the spectrum screen; replacing case-by-case, post-auction spectrum screen analysis with consideration of auction specific spectrum limits; and reserving a certain amount of 600 MHz spectrum in order to ensure against excessive concentration in holdings of below-1-GHz spectrum. These policies will promote consumer choice and competition among multiple service providers, and consistent with its statutory mandate, will promote the efficient and intensive use of scarce spectrum as well as maximizing economic opportunity and the deployment of innovative technologies. The Commission seeks to minimize the risk of the lessening of competition in the future due to the likelihood that an insufficient number of service providers would have access to the mix of low- and high-band spectrum needed to ensure robust competition in the mobile wireless marketplace.

B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

161. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Would Apply

162. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

163. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Its action may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,506 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

164. Cellular Licensees. The SBA has developed a small business size standard for small businesses in the category “Wireless Telecommunications Carriers (except satellite).” Under that SBA category, a business is small if it has 1,500 or fewer employees. The census category of “Cellular and Other Wireless Telecommunications” is no longer used and has been superseded by the larger category “Wireless Telecommunications Carriers (except satellite).” The Census Bureau defines this larger category to include “establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services.”

165. In this category, the SBA has deemed a wireless telecommunications carrier to be small if it has fewer than 1,500 employees. For this category of carriers, Census data for 2007, which supersede similar data from the 2002 Census, shows 1,383 firms in this category. Of these 1,383 firms, only 15 (approximately 1%) had 1,000 or more employees. While there is no precise Census data on the number of firms in the group with fewer than 1,500 employees, it is clear that at least the 1,368 firms with fewer than 1,000 employees would be found in that group. Thus, at least 1,368 of these 1,383 firms (approximately 99%) had fewer than 1,500 employees. Accordingly, the Commission estimates that at least 1,368 (approximately 99%) had fewer than 1,500 employees and, thus, would be considered small under the applicable SBA size standard.

166. Wireless Telecommunications Carriers (except satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers. The size standard for that category is that a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by its proposed action.

167. 2.3 GHz Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (“WCS”) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA approved these definitions. The Commission conducted an auction of geographic area licenses in the WCS service in 1997. In the auction, seven bidders that qualified as very small business entities won 31 licenses, and one bidder that qualified as a small business entity won a license.

168. 1670-1675 MHz Services. This service can be used for fixed and mobile uses, except aeronautical mobile. An auction for one license in the 1670-1675 MHz band was conducted in 2003. The Commission defined a “small business” as an entity with attributable average annual gross revenues of not more than $40 million for the preceding three years, which would thus be eligible for a 15 percent discount on its winning bid for the 1670-1675 MHz band license. Further, the Commission defined a “very small business” as an entity with attributable average annual gross revenues of not more than $15 million for the preceding three years, which would thus be eligible to receive a 25 percent discount on its winning bid for the 1670-1675 MHz band license. The winning bidder was not a small entity.

169. 3650-3700 MHz Band Licensees. In March 2005, the Commission released an order providing for the nationwide, non-exclusive licensing of terrestrial operations, utilizing contention-based technologies, in the 3650 MHz band (i.e., 3650-3700 MHz). As of April 2010, more than 1270 licenses have been granted and more than 7433 sites have been registered. The Commission has not developed a definition of small entities applicable to 3650-3700 MHz band nationwide, non-exclusive licensees. However, the Commission estimated that the majority of these licensees are Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.

170. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. Census data for 2007 shows that there were 1,383 firms in the Wireless Telecommunications Carriers (except Satellite) category that operated that year. Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more than 100 employees. Thus under this category and the associated small business size standard, the majority of firms can be considered small. According to Trends in Telephone Service data, 434 carriers reported that they were engaged in wireless telephony. Of these, an estimated 222 have 1,500 or fewer employees and 212 have more than 1,500 employees. Therefore, approximately half of these entities can be considered small. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.

171. Broadband Personal Communications Service. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous years. For F-Block licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C-Block auctions. A total of 93 bidders that claimed small and very small business status won approximately 40 percent of the 1,479 licenses in the first auction for the D, E, and F Blocks. On April 15, 1999, the Commission completed the re-auction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22. Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.

172. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 14 winning bidders in that auction, six claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.

173. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. In 2006, the Commission conducted its first auction of AWS-1 licenses. In that initial AWS-1 auction, 31 winning bidders identified themselves as very small businesses. Twenty-six of the winning bidders identified themselves as small businesses. In a subsequent 2008 auction, the Commission offered 35 AWS-1 licenses. Four winning bidders identified themselves as very small businesses, and three of the winning bidders identified themselves as a small business. For AWS-2 and AWS-3, although the Commission does not know for certain which entities are likely to apply for these frequencies, the Commission noted that the AWS-1 bands are comparable to those used for cellular service and personal communications service. The Commission has not yet adopted size standards for the AWS-2 bands but has proposed to treat both AWS-2 similarly to broadband PCS service and AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in relocating incumbents and developing markets, technologies, and services.

174. On March 31, 2014, the Commission adopted rules for spectrum in the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz bands (collectively, “AWS-3”) that make available an additional sixty-five megahertz of commercial spectrum for the provision of mobile broadband services. The Commission indicated that the Commission will assign AWS-3 licenses by competitive bidding, offering five megahertz and ten megahertz blocks. The Spectrum Act states that the Commission shall grant new initial licenses for these bands by February 23, 2015.

175. In December 2012, the Commission adopted licensing, operating, and technical rules for stand-alone terrestrial mobile wireless operations in the AWS-4 spectrum. The Commission concluded that it would assign the AWS-4 spectrum to the incumbent Mobile Satellite Service (MSS) operators in order to make this spectrum available efficiently and quickly for flexible, terrestrial use, such as mobile broadband. The Commission also determined that it would assign AWS-4 licenses to DISH, as the incumbent MSS operator in that spectrum, and established a concrete, proven process for efficient relocation of incumbent operations from 2180-2200 MHz.

176. In June 2013, the Commission implemented the Spectrum Act provisions pertaining to the H Block by adopting service rules for the band, including pairing the two 5 megahertz blocks establishing EAs as the license area, and generally adopting Part 27 flexible use rules. On February 27, 2014 the Commission concluded its auction of H Block licenses, with DISH placing the winning bids on all 176 licenses across the nation.

177. Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the Lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (“MSA/RSA”) licenses —“entrepreneur”— which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA approved these small size standards. An auction of 740 licenses was conducted in 2002 (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)). Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. In 2005, the Commission completed an auction of 5 licenses in the lower 700 MHz band (Auction 60). All three winning bidders claimed small business status.

178. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order. An auction of A, B and E block licenses in the Lower 700 MHz band was held in 2008. Twenty winning bidders claimed small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years). Thirty three winning bidders claimed very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years). In 2011, the Commission conducted Auction 92, which offered 16 lower 700 MHz band licenses that had been made available in Auction 73 but either remained unsold or were licenses on which a winning bidder defaulted. Two of the seven winning bidders in Auction 92 claimed very small business status, winning a total of four licenses.

179. Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz licenses. On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one nationwide license in the D Block. The auction concluded on March 18, 2008, with three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) and winning five licenses.

180. Pursuant to the Spectrum Act, Congress provided for the deployment of a nationwide public safety broadband network in the 700 MHz band, including reallocating the Upper 700 MHz D Block from a commercial spectrum block to public safety use. On September 7, 2012, the Public Safety and Homeland Security Bureau adopted a Report and Order to reallocate the D Block for “public safety services.” Congress established FirstNet as an independent authority within the National Telecommunications and Information Administration (NTIA), and required the Commission to grant a license to FirstNet for the use of both the existing public safety broadband spectrum (763-768/793-798 MHz) and the Upper D Block. On November 15, 2012, the Public Safety and Homeland Security Bureau granted FirstNet the license prescribed by statute, under call sign WQQE234.

181. 700 MHz Guard Band Licenses. In 2000, the Commission adopted the 700 MHz Guard Band Report and Order, in which it established rules for the A and B block licenses in the Upper 700 MHz band, including size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of these licenses was conducted in 2000. Of the 104 licenses auctioned, 96 licenses were won by nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses was held in 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

182. Specialized Mobile Radio. The Commission adopted small business size standards for the purpose of determining eligibility for bidding credits in auctions of SMR geographic area licenses in the 800 MHz and 900 MHz bands. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The Commission defined a “very small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards for both the 800 MHz and 900 MHz SMR Service. The first 900 MHz SMR auction was completed in 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 licenses in the 900 MHz SMR band. In 2004, the Commission held a second auction of 900 MHz SMR licenses and three winning bidders identifying themselves as very small businesses won 7 licenses. The auction of 800 MHz SMR licenses for the upper 200 channels was conducted in 1997. Ten bidders claiming that they qualified as small or very small businesses under the $15 million size standard won 38 licenses for the upper 200 channels. A second auction of 800 MHz SMR licenses was conducted in 2002 and included 23 Basic Economic Area (“BEA”) licenses. One bidder claiming small business status won five licenses.

183. The auction of the 1,053 800 MHz SMR licenses for the General Category channels was conducted in 2000. Eleven bidders who won 108 licenses for the General Category channels in the 800 MHz SMR band qualified as small or very small businesses. In an auction completed in 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small or very small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed to be small businesses.

184. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues not exceeding $15 million. One firm has over $15 million in revenues. In addition, the Commission does not know how many of these firms have 1,500 or fewer employees. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA.

185. 1.4 GHz Band Licensees. The Commission conducted an auction of 64 1.4 GHz band licenses in the paired 1392-1395 MHz and 1432-1435 MHz bands, and in the unpaired 1390-1392 MHz band in 2007. For these licenses, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, had average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. Neither of the two winning bidders claimed small business status.

186. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (“MDS”) and Multichannel Multipoint Distribution Service (“MMDS”) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”) (previously referred to as the Instructional Television Fixed Service (“ITFS”)). In connection with the 1996 BRS auction, the Commission established a “small business” as an entity that had annual average gross revenues of no more than $40 million in the previous three years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimated that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, which resulted in the licensing of 78 authorizations in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) will receive a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) will receive a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) will receive a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

187. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimated that at least 1,932 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” For these services, the Commission uses the SBA small business size standard for the category “Wireless Telecommunications Carriers (except satellite),” which is 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use the most current census data. According to Census Bureau data for 2007, there were a total of 955 firms in this previous category that operated for the entire year. Of this total, 939 firms employed 999 or fewer employees, and 16 firms employed 1,000 employees or more. Thus, the majority of these firms can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

188. The R&O implements several rule and policy modifications: (1) Codifying the Commission's policies for attributing spectrum holdings for certain purposes; (2) including in the initial spectrum screen applied to the Commission's review of transactions the AWS-4 band, AWS H Block, additional BRS spectrum, most of the EBS spectrum and the AWS-3 band (on a market-by-market basis); (3) replacing the current application of the mobile spectrum screen in case-by-case analysis of post-auction applications with a determination for each auction of whether to apply mobile spectrum holding limits to that auction; and (4) reserving a certain amount of 600 MHz spectrum (to be determined by a market-based mechanism during the Incentive Auction) for qualified bidders. These modifications should have minimal, if any reporting, recordkeeping or compliance impact on small entities, which tend to have relatively small spectrum holdings and rarely engage in the sort of large mergers and spectrum acquisitions that would trigger the spectrum screen and competitive scrutiny. All four rule modifications are intended to provide a clear framework for the Commission's competitive review of spectrum acquisitions in auctions and secondary markets—a framework that focuses, among other things, on facilitating access by multiple providers, including small entities, to a mix of low-band and high-band spectrum. Rule modification 3 is intended to facilitate access to 600 MHz spectrum for the entry and expansion of multiple providers, including small entities.

E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

189. The rule modifications the Commission implements in the R&O are intended to promote competition in the provision of mobile services by, among other measures, facilitating access to spectrum by multiple providers, including small entities. The Commission has done so by imposing a minor new regulatory requirement on small firms, namely that such firms (and others) certify their qualification to bid on the reserved 600 MHz spectrum. After careful review, the Commission has determined that imposing this qualification to bid on reserved spectrum is necessary to help preserve spectrum for small entities. This certification process saves time and resources for small entities, making them better equipped to compete in spectrum auctions.

F. Report to Congress

190. The Commission will send a copy of the R&O, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the R&O, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the R&O and FRFA (or summaries thereof) will also be published in the Federal Register.

G. Paperwork Reduction Act Analysis

191. The Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding in a separate Federal Register notice. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

192. In this present document, the Commission has assessed the effects of modifying reporting rules, and finds that doing so does not change the burden on small businesses with fewer than 25 employees.

194. It is further ordered that the rules adopted herein will become effective September 9, 2014.

195. It is further ordered that, pursuant to section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of the R&O to Congress and to the Government Accountability Office.

196. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this R&O, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in Part 20

Communications common carriers, Communications equipment, Radio.

Federal Communications Commission.Marlene H. Dortch,Secretary.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows:

PART 20—COMMERCIAL MOBILE SERVICES1. The authority citation for part 20 continues to read as follows:Authority:

(a) Applicants for mobile wireless licenses for commercial use, for assignment or transfer of control of such licenses, or for long-term de facto transfer leasing arrangements as defined in § 1.9003 of this chapter and long-term spectrum manager leasing arrangements as identified in § 1.9020(e)(1)(ii) must demonstrate that the public interest, convenience, and necessity will be served thereby. The Commission will evaluate any such license application consistent with the policies set forth in Policies Regarding Mobile Spectrum Holdings, Report and Order, FCC 14-63, WT Docket No. 12-269, adopted May 15, 2014.

(b) Attribution of interests. (1) The following criteria will apply to attribute partial ownership and other interests in spectrum holdings for purposes of:

(i) Applying a mobile spectrum holding limit to the licensing of spectrum through competitive bidding; and

(2) Controlling interests shall be attributable. Controlling interest means majority voting equity ownership, any general partnership interest, or any means of actual working control (including negative control) over the operation of the licensee, in whatever manner exercised.

(3) Non-controlling interests of 10 percent or more in spectrum shall be attributable. Interests of less than 10 percent in spectrum shall be attributable if such interest confers de facto control, including but not limited to partnership and other ownership interests and any stock interest in a licensee.

(4) The following interests in spectrum shall also be attributable to holders:

(i) Officers and directors of a licensee shall be considered to have an attributable interest in the entity with which they are so associated. The officers and directors of an entity that controls a licensee or applicant shall be considered to have an attributable interest in the licensee.

(ii) Ownership interests that are held indirectly by any party through one or more intervening corporations will be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, except that if the ownership percentage for an interest in any link in the chain exceeds 50 percent or represents actual control, it shall be treated as if it were a 100 percent interest. (For example, if A owns 20% of B, and B owns 40% of licensee C, then A's interest in licensee C would be 8%. If A owns 20% of B, and B owns 51% of licensee C, then A's interest in licensee C would be 20% because B's ownership of C exceeds 50%).

(iii) Any person who manages the operations of a licensee pursuant to a management agreement shall be considered to have an attributable interest in such licensee if such person, or its affiliate, has authority to make decisions or otherwise engage in practices or activities that determine, or significantly influence, the nature or types of services offered by such licensee, the terms upon which such services are offered, or the prices charged for such services.

(iv) Any licensee or its affiliate who enters into a joint marketing arrangement with another licensee or its affiliate shall be considered to have an attributable interest in the other licensee's holdings if it has authority to make decisions or otherwise engage in practices or activities that determine or significantly influence the nature or types of services offered by the other licensee, the terms upon which such services are offered, or the prices charged for such services.

(v) Limited partnership interests shall be attributed to limited partners and shall be calculated according to both the percentage of equity paid in and the percentage of distribution of profits and losses.

(vi) Debt and instruments such as warrants, convertible debentures, options, or other interests (except non-voting stock) with rights of conversion to voting interests shall not be attributed unless and until converted or unless the Commission determines that these interests confer de facto control.

(vii) Long-term de facto transfer leasing arrangements as defined in § 1.9003 of this chapter and long-term spectrum manager leasing arrangements as identified in § 1.9020(e)(1)(ii) that enable commercial use shall be attributable to lessees, lessors, sublessees, and sublessors for purposes of this section.

(c) 600 MHz Band holdings. (1) The Commission will reserve licenses for up to 30 megahertz of the 600 MHz Band, offered in the Incentive Auction authorized by Congress pursuant to 47 U.S.C. 309(j)(8)(G), for otherwise qualified bidders who do not hold an attributable interest in 45 megahertz or more of the total 134 megahertz of below-1-GHz spectrum which consists of the cellular (50 megahertz), the 700 MHz (70 megahertz), and the SMR (14 megahertz) spectrum in a Partial Economic Area (PEA), as calculated on a county by county population-weighted basis, utilizing 2010 U.S. Census data. The amount of reserved and unreserved 600 MHz Band licenses will be determined based on the market-based spectrum reserve set forth in Policies Regarding Mobile Spectrum Holdings, Report and Order, FCC 14-63, WT Docket No. 12-269, adopted May 15, 2014, as well as subsequent Public Notices. Nothing in this paragraph will limit, or may be construed to limit, an otherwise qualified bidder that is a non-nationwide provider of mobile wireless services from bidding on any reserved or unreserved license offered in the Incentive Auction.

(2) For a period of six years, after initial licensing, no 600 MHz Band license, regardless of whether it is reserved or unreserved, may be transferred, assigned, partitioned, disaggregated, or long term leased to any entity that, after consummation of the transfer, assignment, or leased on a long term basis, would hold an attributable interest in one-third or more of the total suitable and available below-1-GHz spectrum as calculated on a county by county population-weighted basis in the relevant license area, utilizing 2010 U.S. Census data.

(3) For a period of six years, after initial licensing, no 600 MHz Band reserved license may be transferred, assigned, partitioned, disaggregated, or leased on a long term basis to an entity that was not qualified to bid on that reserved spectrum license under paragraph (c)(1) of this section at the time of the Incentive Auction short-form application deadline.

In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's document Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities (Report and Order). This announcement is consistent with the Report and Order, which stated that the Commission would publish a document in the Federal Register announcing the effective date of those rules.

DATES:

47 CFR 64.604(c)(10)(iv), (c)(11)(iii) and (iv), and 64.606(a)(2)(ii)(F), published at 78 FR 53684, August 30, 2013, are effective July 11, 2014.

This document announces that, on June 18, 2014, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Report and Order, FCC 13-118, published at 78 FR 53684, August 30, 2013. The OMB Control Number is 3060-1053. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1053, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 18, 2014, for the information collection requirements contained in the Commission's rules at 47 CFR 64.604(c)(10)(iv), (c)(11)(iii) and (iv), and 64.606(a)(2)(F). Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1053.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

Number of Respondents and Responses: 153,605 respondents; 373,280 responses.

Estimated Time per Response: .25 hours (15 minutes) to 20 hours.

Frequency of Response: Annual, every five years, on-going, and one-time reporting requirement; Recordkeeping requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for the information collection requirements is found at Sec. 225 [47 U.S.C. 225] Telecommunications Services for Hearing-Impaired Individuals; The Americans with Disabilities Act of 1990 (ADA), Public Law 101-336, 104 Stat. 327, 366-69, was enacted on July 26, 1990.

Total Annual Burden: 113,252 hours.

Total Annual Cost: $558,000.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information by the Commission from individuals.

Privacy Impact Assessment: No impact(s).

Needs and Uses: On August 1, 2003, the Commission released the Declaratory Ruling, In the Matter of Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, published at 68 FR 55898, September 28, 2003. In the Declaratory Ruling, the Commission clarified that one-line captioned telephone voice carry over (VCO) service is a type of telecommunications relay service (TRS) and that eligible providers of such services are eligible to recover their costs in accordance with section 225 of the Communications Act. The Commission also clarified that certain TRS mandatory minimum standards do not apply to one-line captioned telephone VCO service and waived 47 CFR 64.604(a)(1) and (a)(3) for all current and future captioned telephone VCO service providers, for the same period of time beginning August 1, 2003. The waivers were contingent on the filing of annual reports, for a period of three years, with the Commission. Sections 64.604(a)(1) and (a)(3) of the Commission's rules, which contained information collection requirements under the PRA, became effective on March 26, 2004.

On July 19, 2005, the Commission released an Order, In the Matter of Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67 and CG Docket No. 03-123, published at 70 FR 54294, September 14, 2005, clarifying that two-line captioned telephone VCO service, like one-line captioned telephone VCO service, is a type of TRS eligible for compensation from the Interstate TRS Fund. Also, the Commission clarified that certain TRS mandatory minimum standards do not apply to two-line captioned VCO service and waived 47 CFR 64.604(a)(1) and (a)(3) for providers who offer two-line captioned VCO service. This clarification increased the number of providers who will be providing one-line and two-line captioned telephone VCO services.

On January 11, 2007, the Commission released a Declaratory Ruling, In the Matter of Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket No. 03-123, published at 72 FR 6960, February 14, 2007, granting a request for clarification that Internet Protocol (IP) captioned telephone relay service (IP CTS) is a type of TRS eligible for compensation from the Interstate TRS Fund (Fund) when offered in compliance with the applicable TRS mandatory minimum standards.

On August 26, 2013, the Commission issued a Report and Order, In the Matter of Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, published at 78 FR 53684, August 30, 2013, to regulate practices relating to the marketing of IP CTS, impose certain requirements for the provision of this service, and mandate registration and certification of IP CTS users. The Commission published a notice in the Federal Register pursuant to 5 CFR 1320.8(d) on September 25, 2013 (78 FR 59025), seeking comments from the public on the information collection requirements contained in the initial supporting statement. Sorenson Communications, Inc., and its subsidiary CaptionCall, LLC (together, CaptionCall), filed comments on November 25, 2013, regarding the user registration and certification requirements adopted in the Report and Order as well as the certification, recordkeeping, and reporting requirements for hardship exemptions to the captions-off default setting requirement, also adopted in the Report and Order. CaptionCall did not comment on the other collections adopted in the Report and Order.

Subsequently, on December 6, 2013, the United States Court of Appeals for the District of Columbia Circuit stayed “the rule adopted by the Commission [in the Report and Order] prohibiting compensation to providers for minutes of use generated by equipment consumers received from providers for free or for less than $75.” Sorenson Communications, Inc. and CaptionCall, LLC v. FCC, Order, D.C. Cir., No. 13-1246, December 6, 2013, at 1-2. (For convenience, this notice refers to the requirement subject to the stay as “the $75 equipment charge rule.”) In the revised supporting statement, the Commission sought OMB approval of the following requirements adopted in the Report and Order: (1) The requirements regarding the labeling of equipment, software and mobile applications; (2) the certification, recordkeeping, and reporting requirements for the hardship exemption to the captions default-off requirement; and (3) an additional information reporting requirement for IP CTS applicants that seek Commission certification to provide IP CTS and for IP CTS providers, requiring applicants to provide assurance that they will not request or collect payment from the TRS Fund for service to consumers who do not satisfy the Commission's IP CTS registration and certification requirements. Because the registration and certification requirements adopted in the Report and Order are related to the $75 equipment charge rule that was stayed by the court of appeals, the Commission did not seek OMB approval of those requirements at that time. See 79 FR 23354, April 28, 2014.

On June 18, 2014, OMB approved, for a period of three years, the information collection requirements specified above that are contained in the Commission's Report and Order, FCC 13-118, published at 78 FR 53684, August 30, 2013. The OMB Control Number is 3060-1053.

On June 20, 2014, the DC Circuit vacated the $75 equipment charge rule and the rule requiring providers to maintain captions-off as the default setting for IP CTS equipment. Sorenson Communications, Inc. and CaptionCall, LLC v. FCC (D.C. Cir., Nos. 13-1122 and 13-1246, June 20, 2014). Because the court has not yet issued its mandate, the captions-off default requirement, 47 CFR 64.604(c)(10)(i), (ii), (iii), and (v), remains in effect, and the certification, recordkeeping, and reporting requirements for the hardship exemption to the captions default-off requirement, 47 CFR 64.604(c)(10)(iv), will become effective at this time.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule and notice of availability of a final environmental assessment.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), designate and authorize the release of a nonessential experimental population of Upper Columbia River (UCR) spring-run Chinook salmon (Oncorhynchus tshawytscha) under section 10(j) of the Endangered Species Act (ESA) in the Okanogan River subbasin, and establish a limited set of take prohibitions for the nonessential experimental population under section 4(d) of the ESA. Successful reintroduction of a population within the species' historic range would contribute to its viability and further its conservation. The issuance of limited protective regulations will provide for the conservation of the species while providing assurances to people in the Okanogan River subbasin. The geographic boundary for the NEP is the main stem and all tributaries of the Okanogan River between the Canada-United States border and to the confluence of the Okanogan River with the Columbia River, Washington (hereafter “Okanogan River NEP Area”). We have prepared a Final Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) on the proposed action under the National Environmental Policy Act (NEPA) (see ADDRESSES: section below).

DATES:

The final rule is effective August 11, 2014.

ADDRESSES:

The Final Environmental Assessment and other reference materials regarding this final rule can be obtained via the Internet at http://www.westcoast.fisheries.noaa.gov or by submitting a request to the Branch Chief, Protected Resources Division, West Coast Region, NMFS, 1201 NE Lloyd Blvd., Portland, OR 97232.

The UCR spring-run Chinook Salmon evolutionarily significant unit (ESU) is listed as an endangered species under the ESA (16 USC 1531 et seq.). We first designated the UCR spring-run Chinook Salmon ESU as endangered on March 24, 1999 (64 FR 14308), reaffirmed this status on June 28, 2005 (70 FR 37160), and maintained its endangered status after the ESU's 5-year review (76 FR 50448, August 15, 2011). Section 9 of the ESA prohibits the “take” of UCR spring-run Chinook salmon unless otherwise authorized.

The listed ESU currently includes all naturally spawned populations of spring-run Chinook salmon in accessible reaches of Columbia River tributaries between Rock Island and Chief Joseph Dams, excluding the Okanogan River. The Okanogan River is a major tributary of the upper Columbia River, entering the Columbia River between Wells and Chief Joseph Dams. The majority of the Okanogan River subbasin is in Canada (74 percent) with the remainder in Washington State (26 percent). Listed UCR spring-run Chinook salmon from this ESU currently spawn in three river subbasins in eastern Washington: the Methow, Entiat, and Wenatchee. A fourth population historically inhabited the Okanogan River subbasin, but was extirpated in the 1930s because of overfishing, hydropower development, and habitat degradation (NMFS, 2007). The listed UCR Spring-run Chinook Salmon ESU also includes six artificial propagation programs: the Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River spring Chinook salmon hatchery programs.

On November 22, 2010, we received a letter from the Confederated Tribes of the Colville Reservation (CTCR)), a federally recognized Native American tribe, requesting that we authorize the release of an experimental population of spring-run Chinook salmon in the Okanogan River subbasin under section 10(j) of the ESA. The CTCR also initiated discussions on this topic with the United States Fish and Wildlife Service (USFWS), the Bonneville Power Administration, the Army Corps of Engineers, the Bureau of Reclamation, the Washington Department of Fish and Wildlife, and the Okanagan Nations Alliance of Canada. The CTCR's request included a large amount of information on the biology of UCR spring-run Chinook salmon, the possible management implications of releasing an experimental population in the Okanogan River subbasin, and the expected benefits to the recovery of the listed UCR Spring-run Chinook Salmon ESU. On October 24, 2013 we published a proposed rule to designate a nonessential experimental population of spring-run Chinook salmon in the Okanogan River subbasin (78 FR 63439).

Under section 10(j) of the ESA, the Secretary of Commerce (Secretary) may authorize the release of an “experimental” population of a listed species outside its current range when the release of the experimental population will further the conservation of the listed species. The population is experimental under section 10(j) at times when it is wholly separate geographically from nonexperimental populations. In order to authorize the release of an experimental population, section 10(j) also requires that the Secretary determine, using the best available information, whether the experimental population is “essential” or “nonessential” to the continued existence of the listed species. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population (except when the population occurs in an area within the National Wildlife Refuge System or the National Park System, where the ESA requires the population be treated as a threatened species). With respect to the ESA's take prohibitions, section 10(j) treats experimental populations as threatened species, authorizing NMFS to issue regulations governing the application of the ESA's prohibition against take of listed species.

This action involves the designation of a NEP of UCR spring-run Chinook salmon in the Okanogan River subbasin. The release of this NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area would further the conservation of UCR spring-run Chinook salmon by potentially establishing a fourth population in the species' historic range, contributing to the viability of the ESU. Fish used for the reintroduction would come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. The Methow River population of these fish is included in the UCR Spring-run Chinook Salmon ESU and has the best chance to survive and adapt to conditions in the Okanogan River subbasin because they most closely resemble the genetic and life-history characteristics of the UCR spring-run Chinook salmon population that historically inhabited the Okanogan River subbasin (Jones et al., 2011). Fish from the NEP are expected to remain geographically separate from the UCR Spring-run Chinook Salmon ESU during the life stages in which they remain in, or return to, the Okanogan River; the experimental designation will not apply at any time when members of the NEP are downstream of the confluence of the Okanogan River with the Columbia River. This experimental population release is being implemented as recommended in the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (NMFS, 2007), while at the same time ensuring that the reintroduction does not impose undue regulatory restrictions on landowners and third parties.

The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of their origin. Conversely, when UCR spring-run Chinook salmon are located outside this defined Okanogan River NEP Area, they are not considered part of the NEP.

In this action, we are designating an experimental population that is geographically separate from the nonexperimental ESA-listed UCR population, as spring-run Chinook salmon are currently extirpated in the Okanogan River subbasin. This designation is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery, either minimally if an Okanogan population does not establish itself, or significantly if it does. The NEP will be geographically separated from the larger ESU of UCR spring-run Chinook salmon while in the Okanogan River subbasin, but will intermingle with other Chinook salmon populations as they travel downstream of the NEP area, while in the ocean, and on part of their upstream spawning migration. The “experimental” population designation is geographically based and does not travel with the fish outside the Okanogan River NEP Area.

This final rule establishes legal authority under section 10(j) of the ESA for an experimental population of UCR spring-run Chinook salmon in the Okanogan River basin. The rule also provides protective regulations under section 4(d) deemed necessary and advisable to conserve the experimental population. We, in close coordination with tribal, state and federal comanagers, are committed to completing review of the Hatchery Genetic Management Plans associated with the broodstock-collection, fish-transfer, and fish-release activities required to support this reintroduction effort.

To assist in the development of the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (hereinafter called the recovery plan), we assembled the Interior Columbia Technical Recovery Team (ICTRT) to identify population structure and recovery goals. The recovery plan subsequently adopted the ICTRT recovery goals as delisting criteria for the UCR spring-run Chinook Salmon ESU.

The ICTRT recommended specific abundance and productivity goals for each population in the UCR Spring-run Chinook Salmon ESU. The team also identified the current risk level of each population based on the gap between recent abundance and productivity and the desired recovery goals. The ICTRT (2008) considered all three extant natural populations (Methow, Entiat, and Wenatchee) to be at high risk of extinction based on their current abundance and productivity levels. The ICTRT also recommended spatial structure and diversity metrics for these populations (ICTRT, 2007). Spatial structure refers to the geographic distribution of a population and the processes that affect the distribution. Populations with restricted distribution and few spawning areas are at a higher risk of extinction from catastrophic environmental events (e.g., a single landslide) than are populations with more widespread and complex spatial structure. A population with complex spatial structure typically has multiple spawning areas containing the expression of diverse life-history characteristics. Diversity is the phenotypic (morphology, behavior, and life-history traits) and genotypic (DNA) characteristics within and between populations. Phenotypic diversity allows more diverse populations to use a wider array of environments and protects populations against short-term temporal and spatial environmental changes. Genotypic diversity, on the other hand, provides populations with the ability to survive long-term changes in the environment by providing genetic variations that may prove successful under different situations. It is the combination of phenotypic and genotypic diversity expressed in a natural setting that provides populations with the ability to utilize the full range of habitat and environmental conditions and to have the resiliency to survive and adapt to long-term changes in the environment. The mixing of hatchery fish (or excessive numbers of out-of-basin stocks) with naturally produced fish on spawning grounds can decrease genetic diversity within a population (NMFS, 2007). The ICTRT (2008) also determined that all three extant populations of this ESU are at high risk of extinction based on their current lack of spatial structure and diversity.

The recovery plan identifies re-establishment of a population in the Okanogan River subbasin as a recovery action (NMFS, 2007). More specifically, the recovery plan explains that re-establishment of a spring-run Chinook salmon population in the Okanogan River subbasin would aid recovery of this ESU by increasing abundance, productivity, spatial structure, and diversity, thereby reducing the risk of extinction to the ESU as a whole. The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the Federal Columbia River Power System (FCRPS) ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor.

Statutory and Regulatory Framework

The ESA provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 (16 U.S.C. 1538) and the consultation requirements of section 7 (16 U.S.C. 1536). Section 9 of the ESA prohibits the take of an endangered species. The term “take” is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct” (16 U.S.C. 1532(19)). Section 7 of the ESA provides procedures for federal interagency cooperation and consultation to conserve federally listed species, ensure their survival, help in recovery of these species, and protect designated critical habitat necessary for the survival of the listed species. It also mandates that all federal agencies determine how to use their existing authorities to further the purposes of the ESA to aid in recovering listed species. In addition, ESA section 7 requires that federal agencies will, in consultation with NMFS, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species, or result in the destruction or adverse modification of designated critical habitat. Section 7 of the ESA does not apply to activities undertaken on private land unless they are authorized, funded, or carried out by a federal agency.

As noted above, for the purposes of section 7 of the ESA, section 10(j) requires that we treat NEPs as a species proposed to be listed, unless they are located within a National Wildlife Refuge or National Park, in which case they are treated as threatened, and section 7 consultation requirements apply. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 apply—section 7(a)(1) and section 7(a)(4). In these instances, NEP designations provide additional flexibility in developing conservation and management measures by allowing us to work with the action agency early to develop conservation measures, instead of analyzing an already well-developed proposed action provided by the agency under the framework of a section 7(a)(2) consultation. Additionally, for populations of listed species that are designated as nonessential, section 7(a)(4) of the ESA only requires that federal agencies confer (rather than consult) with us on actions that are likely to jeopardize the continued existence of a species proposed to be listed. These conferences are advisory in nature, and their findings do not restrict agencies from carrying out, funding, or authorizing activities.

For endangered species, section 9 of the ESA automatically prohibits take. For threatened species, the ESA does not automatically extend the Section 9 take prohibitions, but instead authorizes the agency to adopt regulations it deems necessary and advisable for species conservation, including prohibiting take under section 4(d). Where we designate an experimental population of an endangered species, the automatic take prohibition no longer applies; however, because the experimental population is treated as a separate threatened species, we can issue protective 4(d) regulations for that population as we deem necessary and advisable for the conservation of the population. Such regulations may include take prohibitions.

The USFWS has regulations for experimental population designation, 50 CFR 17.80 through 17.84, that provide definitions, considerations in finding that the designation would further the conservation of the species and information to be included in the designation. These regulations state that, in making the determination that the designation would further the conservation of the species, the Secretary must consider the effect of taking the eggs or young from another population, the likelihood that the experimental population will become established, the effect the designation would have on the species' overall recovery, and the extent to which the experimental population would be affected by activities in the area. Under the USFWS regulations, a regulation designating the experimental population must include: A clear means to identify the experimental population; a finding based on the best available science indicating whether the population is essential to the continued existence of the species; management restrictions, protective measures, or other management concerns; and a periodic review of the success of the release and its effect on the conservation and recovery of the species. The USFWS regulations also state that any experimental population shall be treated as threatened for purposes of establishing protective regulations under ESA section 4(d), and the protective regulations for the experimental population will contain applicable prohibitions and exceptions for that population.

The USFWS implementing regulations contain the following specific provisions:

The USFWS regulations define an essential experimental population as one “whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (50 CFR 17.80(b)). All other experimental populations are classified as nonessential (50 CFR 17.81(f)). This definition was directly derived from the legislative history to the ESA amendments that created section 10(j).

In determining whether the experimental population will further the conservation of the species, the USFWS regulations require the agency to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere, (2) the likelihood that any such experimental population will become established and survive in the foreseeable future, (3) the relative effects that establishment of an experimental population will have on the recovery of the species, and (4) the extent to which the introduced population may be affected by existing or anticipated federal or state actions or private activities within or adjacent to the experimental population area (50 CFR 17.81(b)).

USFWS regulations at 50 CFR 17.81(c) also describe four components that will be provided in any regulations promulgated with regard to an experimental population under section 10(j). The components are: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s), (2) a finding of whether the experimental population is, or is not, essential to the continued existence of the species in the wild, (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations, and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

We have not promulgated regulations implementing section 10(j) of the ESA, and have authorized only two experimental populations to date (78 FR 2893, January 15, 2013; 78 FR 79622, December 31, 2013). The USFWS has authorized many experimental populations. While USFWS' regulations do not apply to NMFS' 10(j) authorizations, they can help inform our authorization process and we use them to do so. We considered the factors identified in the USFWS regulations in the course of making the statutorily mandated determinations found in ESA section 10(j). To summarize, the statute requires that we determine: (1) Whether the release will further the conservation of the species, and (2) whether the population is essential or nonessential. In addition, because section 10(j) provides that the population will only be experimental when and at such times as it is wholly separate geographically from nonexperimental populations of the same species, we must establish that there are such times and places when the experimental population is wholly geographically separate. Similarly, the regulations require that we identify the experimental population; the legislative history indicates that the purpose of this requirement is to provide notice as to which populations of listed species are experimental (See, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at 15 (1982)).

Biological Information and Current Status

UCR spring-run Chinook salmon are anadromous fish that migrate as adults from the ocean in the spring to spawn in freshwater streams where their offspring hatch and rear prior to migrating back to the ocean to forage until maturity. At spawning, adults pair to lay and fertilize thousands of eggs in freshwater gravel nests or “redds” excavated by females. Depending on temperatures, eggs incubate for several weeks to months before hatching as “alevins” (a larval life stage dependent on food stored in a yolk sac). Following yolk sac absorption, alevins emerge from the gravel as young juveniles called “fry” and begin actively feeding. UCR spring-run Chinook salmon juveniles spend a year in freshwater areas before migrating to the ocean. The physiological and behavioral changes required for the transition to salt water result in a distinct “smolt” stage. On their journey juveniles migrate downstream through a riverine and estuarine corridor between their natal lake or stream and the ocean.

After two to three years in the ocean, adult UCR spring-run Chinook salmon begin returning from the ocean in the early spring, with the run into the Columbia River peaking in mid-May (NMFS, 2007). Spring-run Chinook salmon enter the upper Columbia River tributaries from April through July. After migration, they hold in these tributaries until spawning occurs in the late summer, peaking in mid-to-late August.

On March 18, 2010, we announced the initiation of 5-year status reviews for 16 ESUs of Pacific salmon including the UCR Spring-run Chinook Salmon ESU (75 FR 13082). As part of this review, our Northwest Fisheries Science Center compiled and issued a report on the newest scientific information on the viability of this ESU. The report states,

“The Upper Columbia Spring-run Chinook salmon ESU is not currently meeting the viability criteria (adapted from the ICTRT) in the Upper Columbia Recovery Plan. Increases in natural origin abundance relative to the extremely low spawning levels observed in the mid‐1990s are encouraging; however, average productivity levels remain extremely low. Large-scale directed supplementation programs are underway in two of the three extant populations in the ESU. These programs are intended to mitigate short‐term demographic risks while actions to improve natural productivity and capacity are implemented. While these programs may provide short‐term demographic benefits, there are significant uncertainties regarding the long‐term risks of relying on high levels of hatchery influence to maintain natural populations (Ford et al. 2011).”

All extant populations are still considered to be at high risk of extinction based on the abundance/productivity and spatial structure/diversity metrics. When the risk levels for these attributes are integrated, the overall risk of extinction for this ESU is high (Ford et al., 2011).Analysis of the Statutory Requirements1. Will authorizing release of a UCR spring-run Chinook salmon experimental population in the Okanogan River subbasin further the conservation of the species?

The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provide pursuant to this [Act] are no longer necessary.” The factors we considered in determining if release of an experimental population in the Okanogan River NEP Area would “further the conservation” of UCR spring-run Chinook salmon included the potential impacts to the ESU posed by the release, the likelihood that the experimental population would become established and self-sustaining, and the extent to which a self-sustaining experimental population would reduce the threats to the ESU's viability. The USFWS regulations suggest considering whether the experimental population would be affected by other state- or federally-approved actions in the area. This last factor may not be subject to precise evaluation, but, where possible, we took into account all factors such as other approved actions that affect whether a population could become established and self-sustaining.

The Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan contains specific management strategies for recovering UCR spring-run Chinook salmon that include securing existing populations and reintroducing spring-run Chinook salmon into historically occupied habitats in the Okanogan River subbasin. The plan concludes, and we continue to agree, that establishing an experimental population of UCR spring-run Chinook salmon in the Okanogan River subbasin is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery.

To ensure the best chance for a successful reintroduction, we first determined the most appropriate source of broodstock within the UCR Spring-run Chinook Salmon ESU and the availability of that source. Reintroduction efforts have the best chance for success when the donor population has life history characteristics and genetic diversity compatible with the anticipated environmental conditions of the habitat into which fish will be reintroduced (Araki et al., 2008). Populations found in watersheds closest to the reintroduction area are most likely to have adaptive traits that will lead to a successful reintroduction, and therefore only spring-run Chinook salmon populations found in the Upper Columbia River subbasin were considered for establishing the experimental population in the Okanogan River NEP Area.

The listed UCR Spring-run Chinook Salmon ESU includes six artificial propagation programs: The Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River. We evaluated the fish propagated by each of these programs for their potential to support a re-introduced population in the Okanogan River subbasin. We concluded that fish produced from the Methow Composite stock of UCR spring-run Chinook salmon at Winthrop National Fish Hatchery are likely the most similar to the extirpated Okanogan spring-run Chinook salmon and represent the best initial source of individuals to establish an experimental population of UCR spring-run Chinook salmon in the Okanogan River. Because the Methow Composite stock of UCR spring-run Chinook salmon are from the neighboring Methow River subbasin and have evolved in an environment similar to that of the Okanogan River subbasin, they are likely to be more genetically similar to the extirpated Okanogan spring-run Chinook salmon population than spring-run Chinook salmon populations from the more distant Entiat and Wenatchee River subbasins. For the past several years, enough adult salmon from the Methow Composite hatchery program have returned to the Methow subbasin to provide enough excess eggs and sperm to begin raising fish for reintroduction into the Okanogan River NEP Area.

We also considered the suitability of available habitat in the Okanogan River subbasin to support the experimental population in the foreseeable future. The Columbia basin as a whole is estimated to have supported pre-development spring-run Chinook salmon returns as large as 588,000 fish (Chapman, 1986). Historically, the UCR Spring-run Chinook Salmon ESU component of the Columbia basin is estimated to have comprised up to 68,900 fish (Mullan, 1987; UCSRB, 2007). It is estimated that before the 1930s, the Okanogan population of the UCR Spring-run Chinook Salmon ESU contained at least 500 spring-run Chinook salmon (NMFS, 2007).

While the historical population of spring-run Chinook salmon in the Okanogan River subbasin has been extirpated, the potential remains to reestablish a population in this area. Over the past century, overfishing, hydropower development, and local habitat degradation have severely impacted ecosystem features and processes in the Okanogan and other subbasins, creating a fragmented mixture of altered or barren fish and wildlife habitats and eradicating UCR spring-run Chinook salmon from the Okanogan River subbasin. Disruptions in the hydrologic system have resulted in widespread loss of migratory corridors and access to productive habitat (CTCR, 2007). Low base stream flow and warm summer water temperatures have limited salmonid production both currently and historically. Stream flow and fish passage within the Okanogan River subbasin are affected by a series of dams and water diversions. However, the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan estimates that the Okanogan River subbasin continues to have the capacity for at least 500 spring-run Chinook salmon (NMFS, 2007).

The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the FCRPS ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor. The implementation of these actions continues to improve habitat conditions in the Okanogan River NEP Area to support reestablishing a potential fourth independent population of UCR spring-run Chinook salmon. Salmon Creek and Omak Creek offer the best habitat conditions for spawning and rearing in the subbasin, and major efforts by the CTCR are underway to restore tributary habitat for spring-run Chinook salmon in both the United States and Canadian portions of the Okanogan River subbasin.

In addition to actions taken under the recovery plan, there are many federal and state laws and regulations that will also help ensure the establishment and survival of the experimental population by protecting aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) requires permits from the United States Army Corps of Engineers (Corps) before dredge or fill material can be discharged into waters of the United States. The dredge and fill permit program provides avoidance, minimization, and mitigation for the potential adverse effects of dredge and fill activities within the nation's waterways (40 CFR 100-149). Section 404(b) of the CWA requires that section 404 permits be granted only in the absence of practicable alternatives to the proposed project, which would have a less adverse impact on the aquatic ecosystem. CWA section 401 provides protection of water quality by requiring dischargers to navigable waters to comply with applicable water quality standards. In addition, construction and operational storm water runoff is subject to restrictions under CWA section 402 and state water quality laws. Also the Magnuson-Stevens Fishery Conservation and Management Act, as amended (16 U.S.C. 1801 et seq.), requires that Essential Fish Habitat (EFH) be identified and federal action agencies consult with NMFS on any activity which they fund, permit, or carry out that may adversely affect EFH. Freshwater EFH for spring-run Chinook salmon in the Upper Columbia River subbasin includes the Okanogan River NEP Area. For each of these authorities, we do not assume complete implementation and compliance for all actions potentially affecting the experimental population or the listed ESU. However, we expect compliance and assume, at a minimum, that these authorities provide a regulatory regime that tends to encourage actions consistent with that regime.

The habitat improvement actions called for in the recovery plan, the protective measures in this final rule, and compliance with existing federal, state and local laws, statutes, and regulations, are expected to contribute to the survival of the experimental population in the Okanogan River subbasin into the foreseeable future. Although any reintroduction effort is likely to require supplementation with hatchery-origin fish for several years, we conclude there is the potential for a population of spring-run Chinook salmon to become established. Furthermore, we conclude that such a self-sustaining population of genetically compatible individuals is likely to further the conservation of the species as discussed above.

2. Is the experimental population separate geographically from the nonexperimental populations of the same species?

Section 10(j) of the ESA requires that we identify the population by regulation to provide notice of which populations are experimental. The statute also provides that the population is only considered experimental “when, and at such times as, [it] is wholly separate geographically from the nonexperimental populations of the same species.” In this case, the analysis and information that identifies the population also demonstrates when and where it will be wholly geographically separate from other UCR spring-run Chinook salmon. Under this rule, the experimental population is defined as the UCR spring-run Chinook salmon population released in the Okanogan River subbasin, and their subsequent progeny, when geographically located within the Okanogan River NEP Area. When the juvenile experimental UCR spring-run Chinook salmon leave the mouth of the Okanogan River and pass into the Columbia River mainstem and proceed to the Pacific Ocean, they are no longer geographically separated from the other extant, listed UCR spring-run Chinook salmon populations, and the “experimental” designation does not apply, unless and until they return as adults to spawn in the Okanogan River NEP Area.

The Okanogan River NEP Area provides the requisite level of geographic separation because UCR spring-run Chinook salmon are currently extirpated from this area, and straying of other UCR spring-run Chinook populations into this area is extremely low (Colville Business Council, 2010). The UCR Spring-run Chinook Salmon ESU does not include the Okanogan River, and the status of the ESU does not rely on the Okanogan River subbasin for recovery. If any extant UCR spring-run Chinook salmon stray into the Okanogan River subbasin, they would acquire experimental status while within that area, and therefore no longer be covered by the “endangered” listing, nor by the full range of section 9 prohibitions. The “experimental” designation is geographically based and does not travel with the fish outside the Okanogan River subbasin.

Hatchery-origin fish used for the reintroduction will be marked, for example, with specific fin clips and/or coded-wire tags to evaluate the stray rate and allow for broodstock collection of returning NEP adults. It may be possible to mark NEP juvenile fish released into the Okanogan River NEP Area in an alternative manner (other than coded-wire tags) that would distinguish them from other Chief Joseph Hatchery-raised Chinook salmon, and we will consider this during the Chief Joseph Hatchery annual review. During the Chief Joseph Hatchery annual review process, information on fish interactions and stray rates, productivity rates of hatchery-origin and natural-origin populations, and harvest effects are analyzed and evaluated for consistency with best management practices for artificial production as developed by the Hatchery Scientific Review Group (HSRG) and other science groups in the Pacific Northwest. Any such clips or tags would not, however, be for the purpose of identifying the NEP since, as discussed above, the experimental population is identified based on the geographic location of the fish. Indeed, if the reintroduction is successful, and fish begin reproducing naturally, their offspring would not be distinguishable from fish from other natural-origin UCR spring-run Chinook salmon populations. Outside of the experimental population area, e.g., in the Columbia River below the mouth of the Okanogan River or in the ocean, any such unmarked fish (juveniles and adults alike) will not be considered members of experimental population. They will be considered part of the ESU currently listed as endangered. Likewise, any fish that were marked before release in the NEP Okanogan River Area will not be considered part of the experimental population once they leave the Okanogan River NEP Area; rather, they will be considered part of the ESU currently listed as endangered.

3. Is the experimental population essential to the continued existence of the species?

The ESA requires the Secretary, in authorizing the release of an experimental population, to determine whether the population would be “essential to the continued existence” of the ESU. The statute does not elaborate on how this determination is to be made. However, as noted above, Congress gave some further definition to the term when it described an essential experimental population as one whose loss “would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (see, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 97-835, at 15 (1982)). The USFWS incorporated this concept into its regulatory definition of an essential population.

Based on the best available information as required by ESA section 10(j)(2)(B), we conclude that the proposed experimental population will not be one “whose loss would be likely to appreciably reduce the likelihood of survival” of the UCR Chinook Spring-run Salmon ESU for the reasons described below.

The recovery plan states that recovery of spring-run Chinook salmon in the Okanogan subbasin is not a requirement for delisting. Based on the recovery plan's recovery criteria and proposed management strategies, the UCR Spring-run Chinook Salmon ESU could recover to the point where listing under the ESA is no longer necessary solely with contributions from the three extant populations. Specifically, if the Wenatchee and Methow populations could achieve a 12-year geometric mean abundance of 2,000 natural-origin fish, and if the Entiat population reaches a 12-year geometric mean abundance of 500 natural-origin fish, the UCR Spring-run Chinook Salmon ESU would meet the recovery criteria for abundance. This would require a minimum productivity of between 1.2 and 1.4 recruits per spawner for the 12-year time period (NMFS, 2007). The extant populations would also need to meet specific criteria, identified in the recovery plan, which would result in a moderate or lower risk for spatial structure and diversity. The Upper Columbia Salmon and Steelhead Recovery Plan identifies several harvest, hatchery management, hydropower and habitat related actions that could be taken to improve viability of the three extant UCR spring-run Chinook salmon populations.

The recovery plan estimates recovery of the UCR Spring-run Chinook Salmon ESU would take 10 to 30 years without the addition of the Okanogan population. Based on the best available current evidence and information, we conclude that recovery of the UCR Spring-run Chinook Salmon ESU would still be likely under the above-discussed conditions.

NOAA's 2011 5-year status review concluded that, despite an increase in abundance and a decrease in productivity of the UCR Spring-run Chinook Salmon ESU, information considered in the review did not change the biological extinction risk category since the previous 2005 status review. Neither status review considered the potential for UCR spring-run Chinook salmon in the Okanogan River subbasin to alter this risk, because UCR spring-run Chinook salmon were extirpated from the Okanogan River subbasin in the 1930s and no UCR spring-run Chinook salmon currently exist in the Okanogan River subbasin.

In summary, even without the establishment of a fourth (Okanogan) population, the UCR Spring-run Chinook Salmon ESU could possibly be delisted if all threats were addressed and all three populations recovered. Because we conclude that a population of UCR spring-run Chinook salmon in the Okanogan River NEP Area is not essential for conservation of the ESU, we conclude that the proper designation is as an NEP. Under Section 10(j)(2)(C)(ii) of the ESA we cannot designate critical habitat for a NEP.

Location of the NEP

ESA section 10(j) requires that the experimental population be designated “only when, and at such times, as it is geographically separate from nonexperimental populations of the same species.” The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of their origin. Conversely, when UCR spring-run Chinook salmon are located outside this defined Okanogan River NEP Area, they are not considered part of the NEP.

Additional Management Restrictions, Protective Measures, and Other Special Management Considerations

As indicated above, section 10(j) requires that experimental populations are treated as threatened species, except for certain portions of section 7. Congress intended that this provision would authorize us to issue regulations we deemed necessary and advisable to provide for the conservation of the experimental population, just as it does, under section 4(d), for any threatened species (Joint Explanatory Statement, supra, at 15). In addition, when amending the ESA to add section 10(j), Congress specifically intended to provide broad discretion and flexibility to the Secretary in managing experimental populations so as to reduce opposition to release of listed species outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we are exercising the authority to issue protective regulations under section 4(d) for the proposed NEP to identify take prohibitions necessary to provide for the conservation of the species and otherwise provide assurances to people in the Okanogan River NEP Area.

The ESA defines “take” to mean: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Concurrent with the ESA section 10(j) authorization, we adopt protective regulations under ESA section 4(d) for the experimental population that prohibit take of UCR spring-run Chinook salmon that are part of the experimental population except in the following circumstances in the Okanogan River NEP Area:

1. Any activity taken pursuant to a valid permit issued by us under § 223.203(b)(1) and § 223.203(b)(7) for scientific research activities.

5. Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan that complies with the requirements of § 223.203(b)(4).

6. Any take that is incidental 1 to an otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations.

1 Incidental take refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant. 50 CFR 402.02

Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon are not considered to be part of the NEP (even if they originated there), and the take prohibitions applicable for endangered UCR spring-run Chinook salmon will apply.

Summary of Comments and Responses

The proposed rule and draft EA established a public comment period from October 24 until December 9, 2013 (78 FR 63439, October 24, 2013). In addition to welcoming comments in general, we also requested comments on seven specific questions regarding: (1) Whether the Methow Composite stock of UCR spring-run Chinook salmon is the best fish to use in establishing an experimental population and the scientific basis for the comment; (2) the proposed geographical boundary of the experimental population; (3) the extent to which the experimental population would be affected by current or future federal, state, tribal, or private actions within or adjacent to the experimental population area; (4) any necessary management restrictions, protective measures, or other management measures that we may not have considered; (5) the likelihood that the experimental population would become established in the Okanogan River NEP Area; (6) whether the proposed experimental population is essential or nonessential; and (7) whether the proposed designation furthers the conservation of the species and whether we have used the best available science in making this determination. We also contacted other Federal agencies and tribes and invited them to comment on the proposed rule. On November 5, 2013, we also held a public meeting within the geographic area affected by the proposed rule.

We received comments from a total of 8 individuals or organizations on the proposed rule and draft EA representing the opinions of various natural resource agencies, county officials, non-governmental organizations, and private entities. Six of the commenters expressed support for the proposal. One of the commenters in support of the proposal also suggested a few specific technical edits and clarifications be made to the draft EA, which we incorporated. The remaining two commenters provided comments expressing concerns about the proposal. Below we summarize our responses to all of the substantive issues raised regarding the proposed rule and draft EA.

Comments and Responses

Comment 1: One commenter noted disappointment in the short comment period, and felt that there was inadequate coordination with elected officials in developing the proposed introduction of endangered UCR spring-run Chinook salmon into the Okanogan River and tributaries.

Response: We provided a 45-day comment period starting on October 24, 2013, and ending on December 9, 2013. We did not receive requests from commenters for a review period extension.

We believe that there was adequate coordination with elected officials and the public in the development of the proposed NEP. The reintroduction of spring-run Chinook salmon into the Okanogan River subbasin was included as a recommended action in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan. The Recovery Plan was developed in close collaboration with the Upper Columbia Salmon Recovery Board with extensive involvement of elected officials, state and tribal co-managers, and other stakeholders throughout the region. In 2011, we published an Advance Notice of Proposed Rulemaking in the Federal Register (76 FR 42658; July 16, 2011) notifying the public of our intention to develop a proposal for reintroduction, and describing opportunities for public engagement. Additional opportunities for input and engagement were highlighted in the proposed rule (78 FR 63439; October 24, 2013). We met with the Okanogan County Commissioners on December 5, 2011, and on November 5, 2013. On those same dates we also convened public meetings in Omak, Washington on the proposed reintroduction. These meetings were noticed in advance in local newspapers.

Comment 2: One commenter contended that there is a lack of credible historical evidence that the Okanogan Basin ever supported a viable population of spring-run Chinook salmon.

Response: We believe there is credible evidence that the Okanogan River subbasin historically supported a viable population of spring-run Chinook salmon (see section 3.2.1.1 of the EA for more detailed discussion). UCR spring-run Chinook salmon historically occurred in at least four systems in the Okanogan River subbasin: (1) Salmon Creek (Craig and Suomela, 1941), (2) tributaries upstream of Lake Osoyoos (Gartrell, 1936; Chapman et al., 1995; NPCC, 2004a), (3) Omak Creek (Fulton, 1968), and (4) the Similkameen River (Fulton, 1968).

Comment 3: One commenter expressed concern that there is inadequate habitat to support the reintroduction of UCR spring-run Chinook salmon.

Response: In the EA we evaluated whether the current water conditions would allow for a reintroduction program to succeed, and which areas of the Okanogan River subbasin currently have potential for year round rearing of UCR spring-run Chinook salmon (Section 3.5.4). We concluded that there is adequate tributary habitat to support UCR spring-run Chinook salmon in the United States portion of the Okanogan River subbasin.

Comment 4: One commenter expressed concern that the reintroduction of spring-run Chinook salmon will negatively impact other ESA listed and non-listed species.

Response: The reintroduction will not negatively impact other populations of UCR spring run Chinook salmon. The reintroduction effort will effectively reduce releases of Methow Composite hatchery smolts in the Methow subbasin by 200,000 out of a program goal of 600,000 smolts, and release them into the Okanogan River subbasin instead. Consequently the number of naturally spawning hatchery fish in the Methow subbasin is expected to be greatly reduced, by approximately one third, providing a large benefit to the endangered wild UCR spring-run Chinook salmon in the Methow subbasin. Apart from this benefit, life-history strategies for UCR spring-run Chinook salmon will not be affected by this action. The reintroduction effort into the Okanogan River subbasin is not expected to alter fisheries management outside of the action area and not expected to result in an increase in harvest impacts for UCR spring-run Chinook salmon or other listed species.

The proposed reintroduction is unlikely to negatively affect UCR summer/fall-run Chinook salmon populations. Spring-run Chinook salmon typically spawn prior to, and in different habitat than, summer/fall-run Chinook salmon habitat. Competition for spawning sites or redd superimposition is typically rare and in this case is not expected between the two species.

The reintroduction effort will not negatively impact UCR steelhead. Given the life-history differences between UCR spring-run Chinook salmon and steelhead (e.g., discrete run, spawn, and emergence timing), adverse ecological interactions between the experimental spring-run Chinook salmon population and steelhead are expected to be minimal. There is the possibility of some incidental take of UCR steelhead by activities directed at the experimental population (e.g., handling of steelhead that is incidental to the collection of spring-run Chinook broodstock). However, the level of incidental take of UCR steelhead is expected to be minimal, and non-lethal. Additionally, while the limited protective regulations in this final rule will apply to the nonessential experimental population of UCR spring-run Chinook salmon, any actions that might directly or indirectly take steelhead in the Okanogan River subbasin must comply with the 4(d) protective regulations for West Coast steelhead (71 FR 5178; February 1, 2006).

Comment 5: One commenter was concerned about the genetic risks to the Methow population of spring-run Chinook salmon posed by “alien” stocks straying into the Methow subbasin from the reintroduction effort in the Okanogan River subbasin.

Response: No “alien” stocks of spring-run Chinook salmon would be used in the reintroduction program. The reintroduction effort will use Methow Composite hatchery stock, a stock originating in the Methow subbasin that is currently propagated at the Winthrop National Fish Hatchery. This stock is considered the most closely related to the historical spring Chinook salmon run in the Okanogan River subbasin and determined to be the best for the reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). As previously mentioned, the proposed reintroduction program will likely reduce the impact of the Methow Composite stock on wild UCR spring-run Chinook salmon in the Methow subbasin by relocating the release of 200,000 smolts from the Methow River to the Okanogan River subbasin.

Comment 6: One commenter was concerned that harvest targeting reintroduced UCR spring-run Chinook salmon stocks would impede recovery by resulting in the over-harvest of co-mingled Methow subbasin salmon and steelhead.

Response: Although the wild Methow and the reintroduced UCR spring-run Chinook salmon populations would co-mingle in the ocean and mainstem Columbia River during adult migration, neither population will be marked with an adipose-fin clip and thereby be subjected to higher sport-harvest rates (see EA Subsection 1.7.1.2, Spring-run Chinook Salmon Reintroduction Program (Methow Composite Stock)). Successful reintroduction of an experimental UCR spring-run Chinook salmon population will expand the spatial distribution of the UCR Spring-run Chinook Salmon ESU in the Upper Columbia River Basin, thus aiding in recovery.

Comment 7: One commenter requested information regarding the effectiveness of a previous reintroduction effort by the CTCR in the Okanogan River subbasin using the Carson stock of hatchery spring-run Chinook salmon.

Response: CTCR staff informed us that Chinook smolts were released in the Okanogan River subbasin from 2002 through 2006 to evaluate the potential for a reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). The Carson stock releases were terminated in 2006 in favor of obtaining a broodstock source more genetically similar to the historical Okanagan subbasin stock that would better support a long-term reintroduction program. We could not find any published literature on the effectiveness of the Carson spring-run Chinook salmon reintroduction efforts. According to CTCR staff, the 2002-2006 Carson stock reintroduction effort demonstrated that spring-run Chinook salmon could successfully rear in Omak Creek and emigrate out of the Okanogan River subbasin. The study was short-term and limited in scope. Additional information may be obtained from CTCR staff.

Comment 8: One commenter requested information regarding the designation of other nonessential experimental populations, and whether they had been successful.

Response: To date, NMFS has designated two nonessential experimental populations under section 10(j) of the ESA.

On January 15, 2013, NMFS designated Middle Columbia River steelhead reintroduced above the Pelton Round Butte Hydroelectric Project (Oregon) as a non-essential experimental population under section 10(j) of the ESA. For additional information see: http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/html/2013-00700.html.

On December 31, 2013, NMFS issued a final rule establishing a nonessential experimental population of Central Valley spring-run Chinook salmon and associated protective regulations under section 4(d) of the ESA. For additional information see: http://www.westcoast.fisheries.noaa.gov/central_valley/san_joaquin/san_joaquin_reint.html.

NMFS has not had sufficient time yet to determine the effectiveness of these NMFS 10(j) reintroduction efforts.

The USFWS has used Section 10(j) of the ESA to reintroduce scores of threatened and endangered species throughout the U.S. For additional information see: http://ecos.fws.gov/ecos/home.action.

Response: Funds allocated to salmon recovery and habitat restoration by Public Utility Districts, the Bonneville Power Administration and other federal agencies are already established and would not change as a result of the reintroduction program. Because there would be no change or redirection of these allocated funds with, or without, the designation of UCR spring-run Chinook salmon as a NEP in the Okanogan River subbasin, the reintroduction program would not impose any additional financial burden on Okanogan County ratepayers.

Comment 10: Two commenters expressed concern that the introduction of spring-run Chinook salmon would bring additional regulatory burdens, and that the “threatened” status accompanying a nonessential experimental population might lead to an upgraded endangered status in the future.

Response: This is a concern that we have specifically sought to address throughout the rulemaking process, and as a result, no additional regulatory burdens would occur as a result of this designation. The underlying intent of the nonessential experimental population is to utilize the flexibility and discretion afforded under section 10(j) of the ESA to manage the introduced population in a manner that minimizes regulatory burdens and the potential risk of ESA liability to the local community. Section 10(j) allows us to promulgate tailored protective regulations to ensure that the potential implication(s) of the introduced population are minimized for private stakeholders. An exception to the take prohibitions was included in the proposed rule to address this specific concern by allowing take of spring-run Chinook in the NEP area that is incidental to an otherwise lawful activity (see section CFR 223.301(c)(3)(vi) in this final rule). In this final rule, we have included additional language in this exception to further protect individuals acting lawfully from the take prohibitions by clarifying that “any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat.” This clarifying language will help ensure that an individual does not errantly retain, transport, or possess a fish outside of the Okanogan River NEP Area where the take prohibitions for endangered UCR spring-run Chinook salmon would apply.

The nonessential experimental population designation also minimizes the regulatory burden under section 7 of the ESA for federal actions. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population. Any recommendations that result from the conference are advisory in nature only, further minimizing any regulatory burden associated with the designation of the experimental population.

There is no risk that the reintroduced population will be upgraded to “endangered” status. The “threatened” status that accompanies the reintroduced nonessential experimental population designation will remain unchanged “in perpetuity” (see EA Subsection 4.1.1.5, Short-term and Long-term Timeframes Used for Analyses of the EA).

Comment 11: One commenter was concerned that the reintroduction will only serve to justify future acquisition of private lands for the purposes of habitat restoration and protection.

Response: We respectfully disagree that the reintroduction program will serve as justification for, or provide an incentive for, enhanced land acquisition for habitat conservation. The reintroduction program does not encourage nor require additional land acquisition to be successful. There is adequate potential spring-run Chinook salmon habitat available in the Okanogan River subbasin to support the reintroduction effort (see EA Subsection 3.5.4, Okanogan Subbasin Habitat Availability). Although the 10(j) designation is not a justification to acquire land for habitat conservation purposes, the CTCR and any other entity retain the legal rights to pursue land acquisitions in the Okanogan River subbasin to protect salmon and steelhead habitat. Similarly, landowners retain the legal right to pursue, accept and reject proposed property transactions as they see fit.

Comment 12: One commenter asked whether non-tribal members would be afforded equal harvest opportunities as tribal members on hatchery-origin UCR spring-run Chinook salmon from the Okanogan River subbasin.

Response: The CTCR is developing a fishery management plan to harvest returns to the Okanogan River subbasin if such harvest is required to reduce the proportion of naturally spawning hatchery-origin spring-run Chinook salmon. Washington Department of Fish and Wildlife has not submitted a harvest plan that would include recreational fishing for spring-run Chinook salmon in the Okanogan River subbasin. However, Washington Department of Fish and Wildlife may desire to coordinate with co-managers to set recreational fishing seasons in addition to regulations already established by the CTCR for tribal fisheries in the mainstem Columbia River above Wells Dam for Leavenworth spring-run Chinook salmon returning to the Chief Joseph Hatchery.

After review of the comments and further consideration, we have decided to adopt the proposed rule that was published in the Federal Register (78 FR 63439) on October 24, 2013, with only non-substantive editorial changes. Minor modifications were made to remove unnecessary regulatory language and provide clarity. The modifications make no change to the substance of the rule.

Findings

Based on the best available information, we determine that the release of a NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area will further the conservation of UCR spring-run Chinook salmon. Fish used for the reintroduction will come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. These fish are included in the UCR spring-run Chinook salmon ESU and have the best chance to survive and adapt to conditions in the Okanogan River subbasin (Jones et al., 2011). They are expected to remain geographically separate from the existing three extant populations of the UCR spring-run Chinook Salmon ESU during the life stages in which the NEP remains in, or returns to, the Okanogan River; at all times when members of the NEP are downstream of the confluence of the Okanogan and Columbia Rivers, the experimental designation will not apply. Establishment of a fourth population of UCR spring-run Chinook salmon in the Okanogan River subbasin will likely contribute to the viability of the ESU as a whole. This experimental population release is being implemented as recommended in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan, while at the same time ensuring that the reintroduction will not impose undue regulatory restrictions on landowners and third parties.

We further determine, based on the best available information, that the designated experimental population is not essential to the ESU, because absence of the experimental population will not reduce the likelihood of survival of the ESU. An Okanogan spring-run Chinook salmon population is not a requirement for delisting because the population is extirpated. Implementation of habitat actions in the recovery plan are expected to increase the viability of the Methow, Wenatchee, and Entiat populations to meet ESU recovery criteria without establishment of an Okanogan population. We therefore designate the released population as a Nonessential Experimental Population.

Information Quality Act and Peer Review

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. There are no documents supporting this final rule that meet these criteria.

ClassificationExecutive Order 12866

This final rule has been determined to be not significant under Executive Order (E.O.) 12866.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy at the Small Business Administration at the proposed rule stage that this rule will not have a significant economic effect on a substantial number of small entities. No comments were received regarding the economic impact of this final rule on small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. Because this rule requires no additional regulations on small entities and would impose little to no regulatory requirements for activities within the affected area, a final regulatory flexibility analysis is not required and one was not prepared.

Executive Order 12630

In accordance with E.O. 12630, the final rule does not have significant takings implications. A takings implication assessment is not required because this rule: (1) would not effectively compel a property owner to have the government physically invade their property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property.

Executive Order 13132

In accordance with E.O. 13132, we have determined that this final rule does not have federalism implications as that termed is defined in E.O. 13132.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal agencies obtain approval from OMB before collecting information from the public. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. This final rule does not include any new collections of information that require approval by OMB under the Paperwork Reduction Act.

National Environmental Policy Act

In compliance with all provisions of the National Environmental Policy Act of 1969, we have analyzed the impact on the human environment and considered a reasonable range of alternatives for this final rule. We made the draft EA available for public comment along with the proposed rule, received one set of comments, and responded to those comments in an Appendix to the EA. We have prepared a final EA and FONSI on this action and have made these documents available for public inspection (see ADDRESSES section).

Government-to-Government Relationship With Tribes (E.O. 13175)

E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the federal government in matters affecting tribal interests. If we issue a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.

The CTCR Reservation lies within the experimental population area. In 2010 staff members of CTCR met with NMFS staff. They discussed the Tribe's developing proposal to reintroduce UCR spring-run Chinook salmon in the Okanogan River subbasin and designate it as an ESA 10(j) experimental population.

Since that meeting CTCR and NMFS staffs have been in frequent contact, including explaining the rule-making process and evaluations involved in reviewing any proposal from the Tribes. These contacts and conversations included working together on public meetings held in Okanogan and Omak, WA (December 5, 2011, and November 5, 2013) and monthly status/update calls describing activity associated with the NEPA and ESA reviews associated with the proposal and final rules.

In addition to frequent contact and coordination among CTCR and senior NMFS technical and policy staff, we also discussed hatchery production changes affected by the Chief Joseph Hatchery and the associated aspects of the 10(j) proposal with the Parties to United States v. Oregon (Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation of Oregon, Nez Perce Tribe, and the Shoshone-Bannock Tribes of the Fort Hall Reservation; the States of Washington, Oregon, and Idaho; and the United States (NMFS, USFWS, Bureau of Indian Affairs, and the Department of Justice)). The current 2008-2017 United States v. Oregon Management Agreement (2008) anticipated the development of the Chief Joseph Hatchery. Footnote #5 to Table B-1 Spring Chinook Production for Brood Years 2008-2017 states that the parties to the Agreement “anticipate that the proposed Chief Joseph Hatchery is likely to begin operations during the term of this Agreement. The Parties agree to develop options for providing . . . spring Chinook salmon eggs to initiate the Chief Joseph program when it comes online.” (p. 99). This will include coordinating with the “Production Advisory Committee” (PAC) which is responsible to “coordinate information, review and analyze . . . future natural and artificial production programs . . . and to submit recommendations to the management entities.” (p. 14) The U.S. v Oregon Policy Committee, in February 2012, approved changes to the Agreement that identified the marking and transfer of 200,000 UCR spring-run Chinook salmon pre-smolts to Okanogan River acclimation ponds, and the prioritization of this production, in relation to other hatchery programs in the Methow River subbasin. The footnote has been modified to reflect these changes. The PAC includes technical representatives from ” . . . the Warm Springs Tribe, the Umatilla Tribes, the Nez Perce Tribe, the Yakama Nation, and the Shoshone-Bannock Tribes.” (p.14). It is these technical representatives who will review adult management proposals associated with this final rule. Those representatives are senior staff from the identified tribes and will be in communication with their respective governments. We invite meetings with tribes to have detailed discussions that could lead to government-to-government consultation meetings with tribal governments. We will continue to coordinate with the affected tribes.

References Cited

A complete list of all references cited in this final rule is available upon request (see FOR FURTHER INFORMATION CONTACT).

2. In § 223.102, in the table in paragraph (e) under “Fishes,” add an entry for “Salmon, Chinook (Upper Columbia River spring-run ESU-XN)” after the entry for “Salmon, Chinook (Upper Willamette River ESU)” and before the entry for “Salmon, Chum (Columbia River ESU)” to read as follows:§ 223.102 Enumeration of threatened marine and anadromous species.

ESA rules* * * * * * *Fishes* * * * * * *Salmon, Chinook (Upper Columbia River spring-run ESU-XN)Oncorhynchus tshawytschaUpper Columbia River spring-run Chinook salmon only when, and at such times, as they are found in the mainstem or tributaries of the Okanogan River from the Canada-United States border to the confluence of the Okanogan River with the Columbia River, Washington[Insert Federal Register citation] 7/11/14NA223.301* * * * * * *1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).3. In § 223.301, add paragraph (c) to read as follows:§ 223.301 Special rules—marine and anadromous fishes.

(c) Okanogan River UCR spring-run Chinook Salmon Experimental Population (Oncorhynchus tshawytscha). (1) The Upper Columbia River (UCR) spring-run Chinook salmon population located in the geographic area identified in paragraph (c)(5) of this section shall comprise the Okanogan River nonessential experimental population (NEP), and shall be treated as a “threatened species” pursuant to 16 U.S.C. 1539(j)(2)(C).

(2) Prohibitions. Except as provided in paragraph (c)(3) of this section, the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species apply to UCR spring-run Chinook salmon in the Okanogan River NEP Area, defined in paragraph (c)(5) of this section.

(3) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area. Take of UCR spring-run Chinook salmon that is otherwise prohibited by paragraph (c)(2) of this section and 50 CFR 223.203(a) in the Okanogan River NEP Area is allowed, except as otherwise noted, provided it falls within one of the following categories:

(i) Any activity taken pursuant to a valid permit issued by NMFS under § 223.203(b)(1) and (7) for scientific research activities;

(iii) Activities associated with artificial propagation of the experimental population under an approved Hatchery Genetic Management Plan (HGMP) that complies with the requirements of 50 CFR 223.203(b)(5);

(v) Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan (FMEP) that complies with the requirements of 50 CFR 223.203(b)(4); or

(vi) Any take that is incidental to an otherwise lawful activity, provided that the taking is unintentional; not due to negligent conduct; and incidental to, and not the purpose of, the carrying out of the otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations. Any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat.

(4) Prohibited take outside the NEP area. Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon are not considered to be part of the NEP, irrespective of their origin, and therefore the take prohibitions for endangered UCR spring-run Chinook salmon apply.

(5) Geographic extent of the Okanogan River NEP Area. The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of where they originated.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Temporary rule; apportionment of reserves; request for comments.

SUMMARY:

NMFS apportions amounts of the non-specified reserve to the initial total allowable catch (TAC) and TAC of “other flatfish” in the Bering Sea and Aleutian Islands (BSAI) management area. This action is necessary to allow the fisheries to continue operating. It is intended to promote the goals and objectives of the fishery management plan for the BSAI management area.

DATES:

Effective July 8, 2014, through 2400 hrs, Alaska local time, December 31, 2014. Comments must be received at the following address no later than 4:30 p.m., Alaska local time, July 23, 2014.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2013-0152, by any of the following methods:

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Steve Whitney, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2014 initial TAC and TAC of “other flatfish” in the BSAI were established as 2,253 metric tons (mt) and 2,650 mt, respectively, by the final 2014 and 2015 harvest specifications for groundfish of the BSAI (79 FR 12108, March 4, 2014). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC and TAC for “other flatfish” in the BSAI needs to be supplemented from the non-specified reserve to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 2,247 mt to the ITAC and 1,850 mt to the TAC for “other flatfish” in the BSAI. These apportionments are consistent with § 679.20(b)(1)(i) and do not result in overfishing of any target species because the revised TAC is equal to or less than the specifications of the acceptable biological catch of 12,400 mt in the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014).

The harvest specification for the 2014 TAC included in the harvest specifications for groundfish in the BSAI is revised to 4,500 mt for “other flatfish.”

Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the “other flatfish” fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 26, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES) until July 23, 2014.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

We propose to adopt a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211 Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17 turbofan engines. This proposed AD was prompted by failure of the intermediate pressure (IP) turbine disk drive arm on an RR RB211 Trent turbofan engine. This proposed AD would require modification of the engine by removing any electronic engine control (EEC) that incorporates EEC software standard prior to version B7.2 and installing an EEC eligible for installation. We are proposing this AD to prevent overspeed failure of the turbine blades or the IP turbine disk, which could lead to uncontained blade or disk release, damage to the engine, and damage to the airplane.

For service information identified in this proposed AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; or Web site: https://www.aeromanager.com. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0328; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0328; Directorate Identifier 2014-NE-07-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2014-0051, dated March 6, 2014 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

A Trent engine experienced an engine internal fire, caused by combustion of carbon deposits inside the high/intermediate (HP/IP) oil vent tubes. The consequent chain of events resulted in the failure of the IP turbine disk drive arm. Similar engine architecture exists on Trent 800 series engines.

This condition, if not corrected, could lead to uncontained multiple turbine blade failures or an IP turbine disk burst, possibly resulting in damage to, and reduced control of, the aeroplane.

This AD requires incorporating a revised EEC software standard that can prevent an unsafe chain of events that occur subsequent to an internal engine fire. The revised EEC software standard can properly adjust fuel flow, shut down the engine, prevent an overspeed condition, and indirectly extinguish the fire.

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0328.

Relevant Service Information

RR has issued Alert Service Bulletin No. RB.211-73-AH001, dated July 17, 2013. The ASB provides guidance for removal and replacement of the affected EEC.

FAA's Determination and Requirements of This Proposed AD

This product has been approved by the aviation authority of the United Kingdom, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require modification of the engine by removing any EEC that incorporates EEC software standard prior to version B7.2 and installing an EEC eligible for installation.

Costs of Compliance

We estimate that this proposed AD would affect about 140 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 hours per product to comply with this proposed AD. The average labor rate is $85 per hour. Required parts cost about $170. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $23,800.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD was prompted by failure of the intermediate pressure (IP) turbine disk drive arm on an RR RB211 Trent turbofan engine. We are issuing this AD to prevent overspeed failure of the turbine blades or the IP turbine disk, which could lead to uncontained blade or disk release, damage to the engine, and damage to the airplane.

(e) Actions and Compliance

Unless already done, within 12 months after the effective date of this AD, remove any electronic engine control (EEC) that incorporates EEC software standard prior to version B7.2 and install an EEC eligible for installation.

(f) Installation Prohibition

After modification of an engine as required by paragraph (e) of this AD, do not install an EEC that incorporates a software standard prior to version B7.2 onto any engine.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(2) Refer to MCAI European Aviation Safety Agency AD 2014-0051, dated March 6, 2014, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2014-0328.

(3) RR Alert Service Bulletin No. RB.211-73-AH001, dated July 17, 2013, pertains to the subject of this AD and can be obtained from Rolls-Royce plc using the contact information in paragraph (h)(4) of this AD.

(5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

This proposed rule would revise HUD's public housing agency (PHA) consortium regulations. These regulations provide the procedures by which PHAs may choose to administer their public housing and Section 8 programs. The changes proposed are intended to increase administrative efficiencies associated with forming a consortium and to help ensure maximum family choice in locating suitable housing. The proposed rule focuses mainly on establishing a new category of consortia for administration of the Section 8 Housing Choice Voucher (HCV) program. This type of consortium would be comprised of multiple PHAs that would become a single PHA, with a single jurisdiction and a single set of reporting and audit requirements, for purposes of administering the Section 8 HCV program. This type of consortium would be in addition to the consortium structure established in current consortium regulations which the Department is referring to as multiple-ACC consortium in this proposed rule. The proposed rule would also revise the categories of Section 8 programs eligible to be administered under a consortium, and establish new requirements regarding the timeframes for the establishment and dissolution of a consortium. Further, HUD has taken the opportunity afforded by this proposed rule to make several technical, nonsubstantive changes to improve the clarity and organization of the consortia regulations. HUD has also taken the opportunity afforded by this proposed rule to amend the definition of “public housing agency” to be consistent with amendments to the United States Housing Act of 1937 (1937 Act), as provided for in the Consolidated Appropriations Act of 2014.

DATES:

Comments Due Date: September 9, 2014.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, 451 7th Street SW., Room 10276, Department of Housing and Urban Development, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.

1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of the General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0001.

2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

Note:

To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule. No Facsimile Comments. Facsimile (fax) comments are not acceptable.

Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number). Copies of all comments submitted are available for inspection and download at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Michael Dennis, Director, Office of Housing Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4228, Washington, DC 20410-5000; telephone number 202-402-3882 (this is not a toll-free number). Persons with hearing or speech impairments may access these numbers through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Executive SummaryA. Purpose of Regulatory Action

HUD's current public housing consortium regulation poses hurdles to forming consortia. Through this proposed rulemaking, HUD is modifying its regulations to encourage PHAs to form consortia, as doing so enables PHAs to combine administrative functions to increase efficiency and effectiveness, may benefit smaller PHAs with economies-of-scale, and improves opportunities for housing choices. In particular, this rule seeks to increase administrative efficiencies associated with forming a consortium by improving the process for how consortia are formed, structured and dissolved. In addition, this rule supports PHAs mission to provide more suitable housing options for participants by allowing PHAs to operate as one entity throughout a region, as an incentive to PHAs to form consortia.

B. Summary of the Major Provisions of the Regulatory Action in Question

This rule would establish a new category of consortia for administration of the Section 8 HCV program, called the single-Annual Contributions Contract (ACC) consortium. The proposed rule clarifies that PHAs are not precluded from joining a consortium solely because the PHA is the owner of a unit or project receiving rental assistance under section 8(o) of the 1937 Act (42 U.S.C. 1437f). The proposed rule describes how and when consortia can be formed and dissolved, the requirement that a single 5-Year Plan and Annual Plan must be submitted as a condition for formation of the consortium, and fiscal year end requirements that would be applicable to single-ACC and multiple-ACC consortia.

Although the proposed rule is designed to encourage formation of consortia, the proposed rule would impose certain limitations. For example, Moving-to-Work (MTW) agencies may not form or join single-ACC or multiple-ACC consortia because MTW agencies operate under a different set of statutory and regulatory requirements.

II. Background

The 1937 Act (42 U.S.C. 1437 et seq.) authorizes HUD's public housing and assisted housing programs, including the Section 8 HCV program. Section 13 of the 1937 Act (42 U.S.C. 1437k)1 authorizes “any 2 or more” public housing agencies (PHAs) to form consortia “for the purpose of administering any or all of the housing programs” of those PHAs. HUD's regulations implementing section 13 of the 1937 Act are codified at 24 CFR part 943.2 The part 943 regulations describe the programs—specifically, public housing and the Section 8 programs— for which the housing providers participating in those programs are eligible to form consortia. The regulations also establish the minimum requirements relating to the formation and operation of a consortium and the minimum requirements of consortium agreements.

1 As amended by section 515 of the Quality Housing and Work Responsibility Act of 1998 (Pub. L. 105-276, 112 Stat. 2549, approved January 27, 1998).

2 HUD's final rule establishing 24 CFR part 943 was published on November 29, 2000 (65 FR 71204).

A consortium enables PHAs to combine administrative functions to increase efficiency and effectiveness, may benefit smaller PHAs with economies-of-scale, and improves opportunities for greater resident housing choice in the same region.

Through this proposed rule, HUD is seeking to improve the process on how consortia are formed, structured, and dissolved. This proposed rule is also intended to encourage more PHAs to form consortia, which allows ultimately HUD and PHAs to provide more effective and efficient housing assistance to low-income families. This proposed rule has two primary goals: (1) Increase administrative efficiencies associated with forming a consortium; and (2) facilitate maximum resident choice in locating suitable housing within a region through consortia, without the administrative burden associated with the portability process and other policies.

III. Summary of Proposed Changes to the Consortia of Public Housing Agencies

This section of the preamble highlights key features of the proposed revisions to the consortium regulations.

1. Change in definition of “public housing agency.” Section 212 of the Consolidated Appropriations Act of 2014 (Pub. L. 113-76, 128 Stat. 5, approved January 17, 2014) amends the definition of “public housing agency” at subparagraph (A) of section 3(b)(6) of the 1937 Act (42 U.S.C. 1437a(b)(6)(A)) to include in its general definition “a consortium of such entities or bodies as approved by the Secretary.” 3 As a result, HUD is taking the opportunity afforded by this proposed rule to amend the definition of “public housing agency” in its regulations at 24 CFR 5.100 to be consistent with the statutory definition of “public housing agency.”

3 Section 3(b)(6)(B)(i) of the 1937 Act already included “a consortia of public housing agencies that the Secretary determines has the capacity and capability to administer a program for assistance under such section in an efficient manner” in the definition of “public housing agency” for the Section 8 program. As a result of section 212 of the Consolidated Appropriations Act of 2014, inclusion of consortia in the definition of a public housing agency will no longer be limited solely to the Section 8 program.

2. Single-Annual Contributions Contract consortium for the Section 8 HCV program. Section 3(b)(6)(B) of the 1937 Act (42 U.S.C. 1437a(b)(6)) defines the term “public housing agency” to include a consortium of PHAs that HUD “determines has the capacity and capability to administer” the Section 8 HCV program (including project-based vouchers and project-based certificates). Under the statutory language, such a consortium is a separate legal entity and a single PHA for purposes of administering the Section 8 HCV program. HUD is proposing to implement the statutory authority granted under section 3(b)(6)(B) of the 1937 Act by establishing a new category of consortium for the administration of the Section 8 HCV program, to be known as a single-ACC consortium.

While enactment of Section 212 of the Consolidated Appropriations Act of 2014 (as described in Section III.1 above) affords the opportunity to extend single-ACC consortia beyond the Section 8 HCV program, the Department has determined to move forward with publication of this proposed rule, which applies single-ACC consortia formation only to the Section 8 HCV program, so as to not further delay the opportunity for PHAs that desire to enter into this consortia type for their Section 8 HCV programs. However, in the future, the Department plans to further revise consortia regulations to allow single-ACC consortia formations, where applicable, beyond the section 8 HCV program. The decision on whether to form a single-ACC consortium is voluntary and PHAs may elect to form a multiple-ACC or a single-ACC consortium for administration of their Section 8 HCV programs.

The jurisdiction for the single-ACC consortium includes all member PHA jurisdictions. For purposes of Section 8 HCV program administration, jurisdictional boundaries between individual consortium members will cease to exist during the term of the single-ACC consortium. Accordingly, the state and local law of each of the participating PHAs must authorize the operation of the HCV program across established jurisdictional boundaries.

HUD anticipates that PHAs that form a single-ACC consortium for the purposes of voucher administration will see increased administrative efficiencies through one set of reporting and audit requirements, consolidated operations, a centralized waiting list, and a single set of policies and procedures. Families are also better served through the pooling of assets that occurs when forming a single-ACC consortium. Specifically, when resources are consolidated, the combined Section 8 HCV program resources of all member agencies may assist in serving more families in the community.

While the benefits of a single-ACC consortium are realized through an actual consolidation of different PHA Section 8 HCV programs, the single-ACC consortium could allow greater autonomy for consortium members that may still want to retain their own public housing or other housing assistance programs. Additionally, PHAs may choose to form a consortium advisory board or other mechanisms for retaining a greater level of local control in the consortium. Consortium members may also subsequently withdraw from a consortium and return to operating as a single PHA (within regulations and any contractual obligations to the consortium) for purposes of Section 8 HCV program administration.

3. Eligibility of PHA owners of units or projects receiving rental assistance under section 8(o) of the 1937 Act. Under the proposed rule, PHAs that are owners of units receiving tenant-based rental assistance, or projects receiving project-based rental assistance, under section 8(o) of the 1937 Act (42 U.S.C. 1437f(o)) would not be precluded from joining either a single-ACC or multiple-ACC consortium, provided that such Section 8 projects and units are administered in accordance with applicable regulations. Section 943.115(b)(3) of the current consortia regulations provides that formation of consortia does not apply to “a PHA in its capacity as owner of a Section 8 project.” The proposed rule would clarify that PHAs are not precluded from joining a consortium solely because the PHA is the owner of a unit or project receiving rental assistance under section 8(o) of the 1937 Act. Instead, the consortium would be required to administer such units or projects in accordance with applicable regulations.

4. Consortium effective date and advance written notice to HUD. The proposed rule specifies that formation of a consortium will be effective as of January 1 of the following year, and that HUD must be notified of the intent to form a consortium at least 120 days in advance, in writing. HUD may approve an exception to this requirement.

5. Consortia must exist for 5 years before they may dissolve. The proposed rule would require a consortium to exist for 5 years before any withdrawal from, or dissolution of, the consortium is allowed. HUD may (based upon a showing of good cause from the consortium) allow dissolution of, or withdrawal from, a consortium prior to completion of the 5-year term. The 5-year term represents the minimum amount of time a consortium must exist before it may dissolve or before members may withdraw from the consortium; however, the consortium may continue to exist beyond the 5-year term, unless dissolved. HUD proposes requirement of an initial 5-year term to prevent premature dissolutions or withdrawals from a consortium, to encourage consortium formations that are carefully planned and executed, and in consideration of the time and resources involved in the PHAs' and HUD's processing of a consortium. Moreover, the dissolution of a consortium must be consistent with any actions to resolve outstanding civil rights actions of the consortium.

6. Submission of a single PHA Plan. The proposed rule specifies that a single 5-Year Plan and Annual Plan must be submitted for the consortium. The PHA Plan for the consortium shall establish a single set of policies for the consortium as a whole; therefore, consortium members will be bound by the single PHA Plan and will not need to submit individual PHA Plans to HUD for the duration of their inclusion in the consortium. In establishing a single PHA Plan for the consortium, PHAs must evaluate the different set of policies in the existing PHA Plan for each individual PHA wishing to join the consortium and agree on a single set of policies most appropriate for the administration of the consortium.

7. Fiscal Year End Requirement. The proposed rule specifies that, upon formation, PHAs joining a single-ACC consortium must adopt a new fiscal year end for the consortium. PHAs forming a multiple-ACC consortium must all adopt the same fiscal year end. Although the rule requires consortium formation to become effective on January 1, a consortium's fiscal year end does not necessarily have to coincide with that date.

8. MTW PHAs not eligible to join a consortium. The proposed rule specifies that MTW agencies may not form or join single-ACC or multiple-ACC consortia. MTW agencies are not eligible to form or join a consortium because MTW agencies operate under a different set of statutory and regulatory requirements. MTW flexibilities accrue to an individual PHA; therefore, an MTW agency could not transfer its unique flexibilities to other PHAs by way of forming a consortium. Also, an MTW PHA's ability to use program funds interchangeably (“fungibility”) would create an administrative burden to other consortium members in terms of tracking, monitoring, and reporting the use of program funds and would directly conflict with the nature of the single-ACC consortium (which is considered a single PHA, and applies only for administration of the Section 8 HCV program). Lastly, the establishment of a single-ACC consortium by MTW PHAs would require execution of a new MTW agreement with the new single-ACC consortium entity, which is not allowed under current law.

9. Other nonsubstantive changes. In addition to the changes proposed above, HUD would take the opportunity afforded by this proposed rule to make several technical, nonsubstantive, revisions to the part 943 regulations. These proposed amendments do not alter existing regulatory requirements; rather, they are intended to improve the organization and clarity of the regulations. For example, HUD proposes to remove the existing “question and answer” format of the section headings, and to renumber the sections comprising part 943.

IV. Specific Issues for Comment

Although HUD invites comment on all aspects of this proposed rule, HUD specifically seeks comment on the following issues. All public comments received on the proposed rule will be considered in the development of the final rule.

1. Organizational costs for a consortium. HUD is interested in addressing the costs that PHAs may incur in forming a consortium and ensuring a fair and equitable administrative fee structure for a consortium. For instance, there may be organizational costs associated with negotiating a consortium agreement and consolidating PHA operations, databases, and documents. HUD is seeking comment on whether the proposed rule addresses these costs effectively.

2. Administrative fees for single- and multiple-ACC consortia. HUD proposes to calculate administrative fees for a single-ACC consortium using the same criteria that is now used for calculating administrative fees for any other PHA that covers more than one Fair Market Rent (FMR) area. Administrative fees for the single-ACC consortium will be calculated based on the published administrative fee rates covering the FMR area in which the single-ACC consortium has the greatest proportion of its participants on a date in time, as per PIH Information Center data, and the total number of vouchers under lease for the single-ACC consortium as of the first of each month, up to the baseline number of vouchers under the consortium's ACC. However, a consortium may apply to HUD for blended rates, based proportionately on all FMR areas in which program participants are located within the single-ACC consortium instead of only the FMR area where the preponderance of participants are located.

To determine blended rates, HUD considers the published administrative fee rates for all single-ACC consortium FMR areas and all participants under lease in each of the areas on a date in time to calculate weighted averages. If the weighted averages result in higher administrative fee rates for the consortium, then the blended rates will be applied. If the result is lower, then the original administrative fee rates will be used. The blended rates will be based on the published administrative fee rate for each consortium member effective for the year in which the blended rate is requested. Blended rates apply only to the year for which requested. All consortium members are subject to the same proration regardless of a single-ACC consortium's approval for a blended rate. HUD seeks comment on whether use of a blended rate at the onset for calculating administrative fees is a preferable alternative. Also, the proposed rule allows a single-ACC consortium to request higher administrative fees if it operates over a large geographic area. HUD defines “large geographic area” as an area covering multiple counties. Is HUD's definition of a large geographic area appropriate?

Administrative fees for a multiple-ACC consortium's Section 8 HCV program will be calculated individually for each consortium member. The administrative fee calculation under a multiple-ACC consortium differs from that under a single-ACC consortium because the multiple-ACC consortium is structured differently than the single-ACC consortium. Under a multiple-ACC consortium each PHA retains its own ACC and program payments are made to the lead agency, on behalf of other consortium members, and then distributed by the lead agency based on the consortium agreement and HUD regulations.

3. January 1 consortium effective date and consortium fiscal year end. HUD proposes to restrict the formation of a consortium to January 1 of any given year and to require PHAs forming a single-ACC consortium to adopt a new fiscal year end for the consortium. In addition, PHAs forming a multiple-ACC consortium must all adopt the same fiscal year end. However, HUD recognizes that these requirements may delay or discourage potential consortium formations and invites comment specifically on this issue.

4. 5-year consortium term. HUD also proposes to require a consortium to exist for 5 years before any withdrawal or dissolution from a consortium can take place, with the possibility for withdrawals or dissolutions prior to completion of the 5-year term with a showing of good cause. HUD recognizes that this requirement may discourage potential consortium formations, and invites comment specifically on whether the requirement is overly restrictive.

5. Withdrawals from or additions to a consortium. The proposed rule provides that the withdrawal from single-ACC and multiple-ACC consortia by member PHAs must take place on the last day of the consortium's fiscal year. In addition, HUD proposes that all additions of PHAs to single-ACC and multiple-ACC consortia must take place on the first day of the consortium's fiscal year. However, HUD recognizes that these requirements may place undue burden on member PHAs and consortia, and invites comment specifically on these requirements.

6. Voucher and funding distribution in the case of withdrawals from or dissolution of a single-ACC consortium. The proposed rule specifies how vouchers and funding would be distributed upon withdrawal from or dissolution of a single-ACC consortium. Upon dissolution or withdrawal, consortium members would leave the consortium with at least the same number of authorized baseline units they had under their ACC prior to joining the consortium (that is, the number of baseline units contributed by each member to the consortium upon its formation). HUD would therefore calculate the contract renewal funding allocation based on the number of leased vouchers located within their original jurisdiction at the time of withdrawal or dissolution, up to their original baseline number. HUD may, for good cause, allow for an alternative distribution of baseline units and leased vouchers. Funding is proposed to be distributed as follows: Budget authority for the year would be divided proportionately, based on the percentage of all leased units in the consortium that each consortium member would receive upon dissolution or withdrawal. Administrative fees would be paid to the withdrawing PHA and the remaining consortium per the current appropriations requirements. Net Restricted Assets and Unrestricted Net Assets would be distributed based on the percentage of the initial balance that was contributed by each PHA.

The proposed rule also specifies how new incremental vouchers under a tenant protection action and under a special purpose voucher program would be distributed upon dissolution or withdrawal of a single-ACC consortium. New incremental vouchers under a special purpose voucher program (such as the Family Unification Program, HUD's Veterans Affairs Supportive Housing program, and the Non-elderly Disabled voucher program) would be distributed upon dissolution or withdrawal as specified by consortium members in the consortium agreement, provided that such voucher distribution is made in accordance with program requirements under each respective special purpose voucher. Tenant protection vouchers allocated to cover a public housing demolition, disposition, or conversion action would remain with the PHA that has ownership over the property upon dissolution or withdrawal. Tenant protection vouchers allocated to cover a multifamily housing conversion action would remain with the PHA that has jurisdiction over the converted project upon dissolution or withdrawal. If a converted project has overlapping jurisdictions, the consortium agreement would be required to specify which PHA will have jurisdiction over the converted project and therefore retain administration of the tenant protection vouchers associated with such project upon dissolution or withdrawal.

With this background, HUD seeks comment specifically on whether the method of voucher and funding distribution as proposed in this rule equitably divides vouchers and funding among consortium members upon dissolution or withdrawal. Are there alternate methods of voucher and funding distribution that more equitably divide vouchers and funding when a consortium member withdraws or the single-ACC consortium dissolves? Should PHAs be given more discretion to set terms and conditions on dissolution or withdrawal?

7. Partial coverage of a program. In the proposed rule, as in current part 943 of the regulations, a PHA is not authorized to enter a consortium for only part of its eligible program. For example, a PHA may not enter only part of its Section 8 HCV program into a single-ACC consortium or part of its public housing program into a multiple-ACC consortium. This provision is designed to increase administrative efficiencies. Allowing a PHA to enter a consortium for only part of its Section 8 or public housing program would result in as many or more PHA plans and reporting submissions, rather than fewer, and overlapping PHA plans and reports for the same program. On the other hand, allowing a PHA to enter a consortium for only part of its program may allow greater PHA choice in formation of a consortium, and may result in more PHAs choosing to form consortia. HUD invites comments specifically on whether the proposed rule's provision on partial coverage of a program is overly restrictive and whether PHAs will be less inclined to form consortia as a result of this provision.

8. Single-ACC consortium. This proposed rule would authorize the formation of a single-ACC consortium for the administration of the Section 8 HCV program. As more fully described above in this preamble, such a consortium would be a single PHA, with a single jurisdiction, for purposes of administering the Section 8 HCV program. HUD anticipates that PHAs that form a single-ACC consortium for the purposes of voucher administration will see increased administrative efficiencies through one set of reporting and audit requirements, consolidated operations, a centralized waiting list, and a single set of policies and procedures. Moreover, HUD believes that families are also better served through the pooling of assets that occurs when forming a single-ACC consortium.

HUD seeks comments from PHAs, tenant organizations, and other interested members of the public on the benefits of, and the potential administrative and statutory barriers to, forming a single-ACC consortium as provided for in this proposed rule. In particular, HUD is interested in comments regarding the following:

(1) Because the state and local law of each participating PHA in a single-ACC consortium must authorize the operation of the HCV program across established jurisdictional boundaries, to what extent would current state and local laws limit a PHA from joining, or allow a PHA to join, a single-ACC consortia? If allowed by current state and local law, to what extent would PHAs use such authority to form single-jurisdiction consortia?

(2) What changes to the proposed regulatory requirements for single-ACC consortia may be needed to make the formation of such consortia a more valuable and attractive option, in terms of cost-reduction benefits, administrative efficiencies, and housing choices for participants?

(3) How should individual PHAs converting into a single-ACC consortium be held accountable for taking corrective action to resolve prior violations of civil rights, environmental, labor, or other requirements?

V. Findings and CertificationsRegulatory Review—Executive Order 13563

Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.

The broader purpose of the reform to HUD's PHA consortia regulations is to create a regulatory environment in which more PHAs are able to form consortia, without undue or unnecessary regulatory burden. This rule proposes to improve the process on how consortia are formed, structured, and dissolved, by increasing administrative efficiencies associated with forming a consortium and facilitating resident choice in locating suitable housing within a region. Today, there are at least 8 formal consortia encompassing a total of 35 PHAs in states including Alabama, Arizona, Ohio, Georgia, Illinois, Kansas, Kentucky, Texas, Oregon, and Washington. Current consortia typically are small PHAs that form consortia in order to spread the administrative costs of interacting with HUD. HUD anticipates that more consortia will form under the proposed regulations, which remove hurdles experienced by PHAs, thus amplifying the benefits of consortia.

Paperwork Reduction Act

The information collection requirements contained in this proposed rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0235. In accordance with the Paperwork Reduction Act, HUD may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will enable PHAs to establish cross-jurisdictional consortia that would be treated as a single PHA, with a single jurisdiction and a single set of reporting and audit requirements, for purposes of administering the HCV program in a more streamlined and less burdensome fashion. The regulatory streamlining provided by this rule should make it easier for PHAs, including small PHAs, to form consortia and achieve greater benefits. Although there may be some costs associated with the formation and operation of consortia, these are expected to be more than offset by the operational flexibilities afforded by the rule. Moreover, the formation of consortia is a voluntary action and, therefore, to the extent that the proposed rule would result in PHAs incurring any costs, it would be as a result of their own discretion. Accordingly, the undersigned certifies that this rule would not have a significant economic impact on a substantial number of small entities.

Notwithstanding HUD's determination that this rule would not have a significant economic impact on a substantial number of small entities, HUD invites comments specifically regarding less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.

Environmental Impact

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332 et seq.). The FONSI is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW., Room 10276 Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any Federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.

Catalog of Federal Domestic AssistanceThe Catalog of Federal Domestic Assistance number for the Housing Choice Voucher Program is 14.871.Lists of Subjects24 CFR Part 5

Public Housing Agency (PHA) means any state, county, municipality, or other governmental entity or public body, or agency or instrumentality of these entities, that is authorized to engage or assist in the development or operation of low-income housing under the 1937 Act, or a consortium of such entities or bodies as approved by the Secretary.

3. Revise part 943 to read as follows:PART 943—PUBLIC HOUSING AGENCY CONSORTIA AND JOINT VENTURESSubpart A—GeneralSec.943.101 Purpose of this part.943.103 Consortium.943.105 Joint ventures and other business arrangements.Subpart B—Single-ACC Consortium943.201 Programs covered under this subpart.943.203 Organization of a single-ACC consortium.943.205 Jurisdiction of a single-ACC consortium.943.207 Elements of a single-ACC consortium agreement.943.209 Withdrawals from or additions to a single-ACC consortium.943.211 Dissolution of a single-ACC consortium.943.213 Voucher and funding distribution upon dissolution or withdrawal.943.215 The relationship between HUD and a single-ACC consortium.943.217 Organizational costs and administrative fees.943.219 Planning, reporting, and financial accountability.943.221 Responsibilities of a single-ACC consortium.Subpart C—Multiple-ACC Consortium943.301 Programs covered under this subpart.943.303 Organization of a multiple-ACC consortium.943.305 Jurisdiction of a multiple-ACC consortium.943.307 Elements of a multiple-ACC consortium agreement.943.309 Withdrawals from or additions to a multiple-ACC consortium.943.311 Dissolution of a multiple-ACC consortium.943.313 The relationship between HUD and a multiple-ACC consortium.943.315 Organizational costs and administrative fees.943.317 Planning, reporting, and financial accountability.943.319 Responsibilities of member PHAs.Subpart D—Subsidiaries, Affiliates, Joint Ventures in Public Housing943.401 Programs and activities covered under this subpart.943.403 Types of operating organizations for a participating PHA.943.405 Financial impact of a subsidiary, affiliate, or joint venture on a PHA.943.407 Financial accountability of a subsidiary, affiliate, or joint venture to HUD and the Federal Government.943.409 Procurement standards for PHAs selecting partners for a joint venture.943.411 Procurement standards apply for a PHA's joint venture partner.943.413 Procurement standards for a joint venture.Authority:

42 U.S.C. 1437k, and 3535(d).

Subpart A—General§ 943.101 Purpose of this part.

This part authorizes public housing agencies (PHAs), consistent with state and local law, to form consortia, joint ventures, affiliates, subsidiaries, partnerships, and other business arrangements under section 13 of the United States Housing Act of 1937 (42 U.S.C. 1437k) (1937 Act). This part does not preclude a PHA from entering cooperative arrangements to operate its programs under other authority, as long as they are consistent with other program regulations and requirements.

§ 943.103 Consortium.

(a) Consortium. Under the authority of section 13 of the 1937 Act, a PHA participating in a consortium shall enter into a consortium agreement under one of two forms: Single-Annual Contributions Contract (ACC) consortium or multiple-ACC consortium.

(b) Single-ACC consortium. A single-ACC consortium consists of two or more PHAs that join together to perform planning, reporting, and other administrative and management functions of the Section 8 Housing Choice Voucher (HCV) program, as specified in a consortium agreement. Under a single-ACC consortium, the consortium becomes a separate legal entity and is considered a single PHA for purposes of the Section 8 HCV program. A single-ACC consortium must operate the Section 8 HCV program in accordance with all applicable program regulations. HUD funds the consortium as one PHA, and applies all reporting and audit requirements accordingly. The requirements for single-ACC consortia are contained in subpart B of this part.

(c) Multiple-ACC Consortium. A multiple-ACC consortium consists of two or more PHAs that join together to perform planning, reporting, and other administrative functions for member PHAs, as specified in a consortium agreement. A multiple-ACC consortium submits a joint PHA plan, as applicable, and designates a lead PHA. The lead agency collects the assistance funds from HUD that would be paid to the member PHAs for the elements of their operations that are administered by the consortium and allocates them according to the consortium agreement. The lead agency also maintains the consortium's records and submits reports to HUD. Each member PHA in a multiple-ACC consortium retains its own ACC with HUD. The requirements for a multiple-ACC consortium are contained in subpart C of this part.

§ 943.105 Joint ventures and other business arrangements.

Under section 13 of the 1937 Act, PHAs may form joint ventures, affiliates, subsidiaries, partnerships, and other business arrangements. The requirements for such arrangements are contained in subpart D of this part.

(a) A PHA may enter a single-ACC consortium under this subpart solely for administration of the following programs:

(1) The Section 8 HCV program (including project-based vouchers; project-based certificates; the Family Self-Sufficiency program; and special voucher housing types, including the HCV Homeownership Option);

(2) Mainstream 5 vouchers, except that entities which are only authorized to administer Mainstream 5 vouchers may not join or form single-ACC consortia; and

(3) Grants to consortium members in connection with the Section 8 HCV program, to the extent not inconsistent with the terms of the governing documents for the grant program's funding source.

(b) A PHA that is the owner of units receiving tenant-based rental assistance, or a project receiving project-based rental assistance, under section 8(o) of the 1937 Act, is not precluded from joining a single-ACC consortium, provided that such units or Section 8 projects are administered in accordance with 24 CFR 982.352(b) (for tenant-based vouchers) and 24 CFR 983.59 (for project-based vouchers). A PHA participating in the consortium may not serve as an independent entity for units or projects owned by a PHA within the consortium for purposes of 24 CFR 982.352(b) or 24 CFR 983.59.

(c) Moving-To-Work (MTW) PHAs may not form or join a single-ACC consortium.

(d) The single-ACC consortium must cover the PHA's whole HCV program under the ACC with HUD, including all authorized unit months and all funding.

§ 943.203 Organization of a single-ACC consortium.

(a) A PHA that elects to form a single-ACC consortium may do so upon HUD approval, and in accordance with HUD established guidelines and instructions. HUD approval of a single-ACC consortium will be based on the following:

(1) That advance written notice of at least 120 days of the intent to form a single-ACC consortium has been given to HUD. HUD may, upon a showing of good cause, provide an exception to this requirement;

(2) That all required documentation has been submitted including:

(i) The Consortium Agreement;

(ii) The 5-Year Plan and the Annual Plan, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements (See § 943.219, Planning, reporting, and financial accountability);

(iii) A letter of intent signed by the executive director of every PHA wishing to join the single-ACC consortium, with an accompanying board resolution of each PHA;

(iv) Supporting legal opinions satisfactory to HUD that the single-ACC consortium's jurisdiction is consistent with the state and local laws of each consortium member;

(v) Financial documentation for each PHA wishing to join the single-ACC consortium, including a final close-out audit for every PHA joining the single-ACC consortium, up to the effective date of the consortium;

(vi) Certification that no PHA wishing to join the single-ACC consortium fails the civil rights compliance threshold for new funding, or, if applicable, that joining the consortium is consistent with the action(s) to resolve outstanding civil rights matters. HUD will not approve a PHA's conversion into a single-ACC consortium until either:

(A) The PHA wishing to join takes corrective action to the satisfaction of HUD or another entity with authority to enforce a corrective action agreement or order; or

(B) The single-ACC consortium demonstrates to HUD's satisfaction that it has assumed liability for taking the corrective action; and

(vii) Any other form of documentation that HUD deems necessary and appropriate for approval of the single-ACC consortium;

(3) The PHA's performance rating under the Section 8 Management and Assessment Program (SEMAP), and whether there are any open findings from an Office of Inspector General (OIG) audit, HUD Field Office (FO) monitoring review, financial audit, and/or any other HUD or HUD-required review;

(4) That the financial documentation submitted by each PHA in support of single-ACC consortium formation demonstrates that the single-ACC consortium will have the financial capability, as determined by HUD, to administer the programs and activities of the single-ACC consortium;

(5) Any other factors that may indicate appropriateness of single-ACC consortium formation, such as the PHA's capacity to administer its Section 8 HCV program, and the existing market conditions in the jurisdiction of each PHA joining the single-ACC consortium; and

(6) That all other consortium requirements are met.

(b) Upon HUD approval, the single-ACC consortium will become effective as of January 1 of the following year. HUD may, upon showing of good cause, provide an exception to this requirement.

(c) A PHA that elects to form a single-ACC consortium must enter into a consortium agreement, which shall meet the minimum requirements established in § 943.207 (Elements of a single-ACC consortium agreement) of this subpart. The executed consortium agreement must be submitted to HUD, and HUD may require modification to the consortium agreement before approving the formation of the single-ACC consortium.

(d) PHAs joining a single-ACC consortium must adopt a new fiscal year end for the consortium.

(e) The single-ACC consortium must be administered in accordance with the applicable provisions of this part; the consortium agreement; the PHA Plan, as applicable; other applicable HUD regulations and requirements; and state and local law.

§ 943.205 Jurisdiction of a single-ACC consortium.

(a) A single-ACC consortium shall operate in a single consortium-wide jurisdiction composed of the combined jurisdictions of all consortium members. Jurisdictional boundaries between individual consortium members will cease to exist for purposes of HCV program administration during the term of the consortium.

(b) The single-ACC consortium jurisdiction must be consistent with the state and local law of each consortium member.

§ 943.207 Elements of a single-ACC consortium agreement.

(a) The single-ACC consortium agreement governs the formation and operation of the consortium and must specify the following:

(1) The name of each consortium member under the consortium agreement;

(2) The functions to be performed by each consortium member during the term of the consortium;

(3) The structure of the single-ACC consortium, which shall address, at a minimum, the establishment of a board of directors or similar governing body and designated officials;

(4) The process for merging the consortium members' waiting lists upon formation of the single-ACC consortium, including the adoption of waiting list preferences (e.g., homeless) by the single-ACC consortium. This process must not have the purpose or effect of delaying or otherwise denying admission to the program based on race, color, national origin, sex, religion, disability, or familial status of any member of the applicant family;

(5) The terms under which a PHA may join or withdraw from the single-ACC consortium. The consortium agreement shall conform to § 943.209 (Withdrawals from or additions to a single-ACC consortium) of this subpart;

(6) How new incremental vouchers under a special purpose voucher program will be distributed among consortium members upon dissolution or withdrawal from the consortium; and

(7) Which consortium member, upon dissolution or withdrawal, shall have jurisdiction over converted projects with overlapping jurisdictions under a multifamily housing tenant protection action.

(b) The agreement must acknowledge that all consortium members are subject to the single-ACC PHA Plan.

(c) The agreement must be signed by an authorized representative of each consortium member.

§ 943.209 Withdrawals from or additions to a single-ACC consortium.

(a) Withdrawal refers to one or more consortium members leaving the single-ACC consortium without resulting in dissolution of the single-ACC consortium.

(b) Withdrawals from a single-ACC consortium may not occur until the initial 5-year consortium term has expired. HUD may, upon showing of good cause, allow withdrawals from a single-ACC consortium before completion of the initial 5-year term.

(c) If the consortium has any outstanding civil rights matters, withdrawals from a single-ACC consortium may not occur unless the withdrawal is consistent with the action(s) to resolve such matters.

(d) To provide for orderly transition, withdrawal of a PHA must take effect on the last day of the consortium's fiscal year, and addition of a PHA must take effect on the first day of the consortium's fiscal year. The single-ACC consortium must notify HUD in writing of any additions or withdrawals at least 120 days in advance. This notification must include submission of the withdrawing member's replacement 5-Year Plan and Annual Plan, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(e) Upon withdrawal from the single-ACC consortium, the withdrawing member must offer to each applicant currently on the single-ACC consortium's waiting list the opportunity to be placed on the withdrawing member's waiting list, with the date and time of their original application to the single-ACC consortium's waiting list. These applicants must not be considered nonresident applicants (for the purposes of restriction of portability under 982.353(c)) if the applicant was a resident applicant at the time of application to the single-ACC consortium's waiting list.

(f) Upon a member's withdrawal from the single-ACC consortium, vouchers and funding, including net restricted assets and unrestricted net assets, will be distributed to the withdrawing member as specified in § 943.213 (Voucher and funding distribution upon dissolution or withdrawal) of this subpart.

§ 943.211 Dissolution of a single-ACC consortium.

(a) A single-ACC consortium may not be dissolved prior to the expiration of the initial 5-year consortium term. HUD may, upon showing of good cause, allow dissolution of a consortium prior to completion of the initial 5-year term. A single-ACC consortium will continue to exist beyond the initial 5-year consortium term, unless dissolved.

(b) If the consortium has any outstanding civil rights matters, dissolution of a single-ACC consortium may not occur unless the dissolution is consistent with the action(s) to resolve such matters.

(c) To provide for orderly transition, dissolution of the single-ACC consortium must take effect on the last day of the consortium's fiscal year. The single-ACC consortium must notify HUD in writing of dissolution at least 120 days in advance of the dissolution effective date. This notification must include submission of all members' replacement 5-Year Plans and Annual Plans, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(d) Upon dissolution, all withdrawing members must offer to each applicant currently on the single-ACC consortium's waiting list the opportunity to be placed on all of the withdrawing members' waiting lists, with the date and time of their original application to the single-ACC consortium's waiting list. These applicants must not be considered nonresident applicants (for the purposes of restriction of portability under § 982.353(c)) if the applicant was a resident applicant at the time of application to the single-ACC consortium's waiting list.

(e) Upon dissolution, vouchers and funding, including net restricted assets and unrestricted net assets, will be distributed among consortium members as specified in § 943.213 (Voucher and funding distribution upon dissolution or withdrawal) of this subpart.

§ 943.213 Voucher and funding distribution upon dissolution or withdrawal.

(a) Vouchers will be distributed in the following manner upon dissolution or withdrawal:

(1) Each consortium member will leave the consortium upon dissolution or withdrawal with at least the same number of authorized baseline units that the consortium member brought into the consortium at the time of its formation. HUD may, for good cause, allow for an alternative distribution of baseline units.

(2) Each consortium member shall receive contract renewal funding allocations based on the number of leased vouchers located within their original jurisdiction at the time of withdrawal or dissolution, up to their original baseline number. HUD may, for good cause, allow for an alternative distribution of leased vouchers.

(3) Tenant protection vouchers allocated to cover a public housing demolition, disposition, or conversion action will remain with the PHA that has ownership over the property. Tenant protection vouchers allocated to cover a multifamily housing conversion action shall remain with the PHA that has jurisdiction over the converted project. Administration of tenant protection vouchers under converted projects with overlapping jurisdictions shall remain with the PHA that has jurisdiction over the converted project as specified in the consortium agreement.

(4) New incremental vouchers under a special purpose voucher program will be distributed as specified in the consortium agreement, provided that such voucher distribution is made in accordance with program requirements under each respective special purpose voucher program.

(b) Funding will be distributed in the following manner upon dissolution or withdrawal:

(1) Budget authority will be divided proportionately, based on the percentage of all leased units in the consortium that each consortium member will receive.

(2) Administrative fees will be paid to the withdrawing PHA and the remaining consortium per the current appropriations requirements.

(3) Net Restricted Assets and Unrestricted Net Assets will be distributed based upon the percentage of the initial balance that was contributed by each consortium member.

§ 943.215 The relationship between HUD and a single-ACC consortium.

(a) HUD has a direct relationship with the single-ACC consortium, the same as it would have with any other PHA. Program funds will be disbursed to the single-ACC consortium in accordance with the consortium's ACC. Funding must be used in accordance with the consortium agreement, the PHA Plan, and HUD regulations and requirements.

(b) HUD may take any of the remedies described in the ACC against an individual member in a single-ACC consortium, or against the single-ACC consortium as a whole, if it determines that either has substantially violated—or is improperly administering—the requirements of the HCV program.

§ 943.217 Organizational costs and administrative fees.

(a) The administrative fee for a single-ACC consortium will be determined based on the published administrative fee rates for the area in which the single-ACC consortium has the greatest proportion of its participants on a date in time and the total number of vouchers under lease for the single-ACC consortium as of the first of the month, up to the baseline number of vouchers under the single-ACC consortium's ACC.

(b) A single-ACC consortium may apply to HUD for blended rates, which are determined based on a weighted average of the published administrative fee rates for all areas in which program participants are located within the single-ACC consortium and all participants under lease in each of the areas on a date in time. The blended rates will be based on the published administrative fee rate for each consortium member, effective for the year for which the blended rate is requested. Blended rates will only be applied if they result in a higher administrative fee rate for the single-ACC consortium. Blended rates apply only to the year for which requested.

(c) If appropriations are available, a single-ACC consortium may be eligible for a higher administrative fee in accordance with 24 CFR 982.152(b)(2) if it operates over a large geographic area.

(d) If appropriations are available, a single-ACC consortium may be eligible for administrative fees to cover extraordinary costs determined necessary by HUD, in accordance with 24 CFR 982.152(a)(1)(iii)(C), during the initial year of operation of the consortium to provide for the organization and implementation of the single-ACC consortium.

§ 943.219 Planning, reporting, and financial accountability.

(a) A single-ACC consortium is considered one PHA for purposes of Section 8 HCV program administration, including but not limited to, program accounts and records, audit requirements, and all PHA responsibilities under the ACC, the PHA administrative plan, and HUD regulations and other requirements.

(b) Planning, reporting, and financial accountability apply to a single-ACC consortium as follows:

(1) Upon creation of the single-ACC consortium, each member's assets, liabilities, and equity accounts, as related to the HCV program, are consolidated and reported on a consolidated balance sheet for purposes of single reporting in the Financial Assessment Subsystem for Public Housing Agencies (FASS-PH) and the Voucher Management System (VMS).

(2) Prior to entering a single-ACC consortium, each PHA must agree to the completion of a final audit to close-out program accounts for all HCV programs, up to the effective date of the consortium. The final audit must be completed in accordance with 24 CFR 982.159. Once the audit is completed, remaining funds from all the PHAs' accounts must be transferred to the consortium.

(3) During the term of the consortium agreement, the single-ACC consortium must submit a 5-Year Plan and Annual Plan, as applicable, for the consortium, in accordance with 24 CFR part 903 and any other statutory or HUD requirements. For any programs not covered by the single-ACC consortium (e.g., a consortium member administers a public housing program separately from the single-ACC consortium), consortium members must submit a separate 5-Year Plan and Annual Plan to HUD for those programs, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(4) During the term of the consortium agreement, the single-ACC consortium must have a single Section 8 HCV administrative plan for the consortium, in accordance with 24 CFR 982.54 (Administrative plan).

(5) The single-ACC consortium must maintain records and submit reports to HUD as a single PHA for purposes of Section 8 HCV program administration, in accordance with HUD regulations and requirements that account for all activities of the consortium. All consortium members will be bound by the 5-Year and Annual Plans and reports submitted to HUD by the single-ACC consortium for programs covered by the consortium.

(7) A single-ACC consortium must keep a copy of the consortium agreement on file for inspection. The consortium agreement must also be a supporting statement to the PHA plan.

§ 943.221 Responsibilities of a single-ACC consortium.

Each consortium member is responsible for the performance of the consortium and has an obligation to assure that all program funds are used in accordance with HUD regulations and requirements, and that the programs under the consortium are administered in accordance with HUD regulations and requirements. Any breach of program requirements is a breach of the consortium ACC, so each consortium member is responsible for the performance of the consortium as a whole.

(3) The Section 8 Moderate Rehabilitation program, including the Single Room Occupancy program; and

(4) Grants to consortium members in connection with Section 8 and public housing programs, to the extent not inconsistent with the terms of the governing documents for the grant program's funding source.

(b) A PHA that is the owner of units receiving tenant-based rental assistance, or a project receiving project-based rental assistance, under section 8(o) of the 1937 Act, is not precluded from joining a multiple-ACC consortium, provided that such units or Section 8 projects are administered in accordance with 24 CFR 982.352(b) (for tenant-based vouchers) and 24 CFR 983.59 (for project-based vouchers). A PHA participating in the consortium may not serve as an independent entity for units or projects owned by PHAs within the consortium for purposes of 24 CFR 982.352(b) or 24 CFR 983.59.

(c) MTW agencies may not form or join a multiple-ACC consortium.

(d) If a PHA elects to enter a multiple-ACC consortium with respect to a category specified in paragraph (a) of this section, the consortium must cover the PHA's whole program under the ACC with HUD for that category, including all dwelling units and all funding.

§ 943.303 Organization of a multiple-ACC consortium.

(a) A PHA that elects to form a multiple-ACC consortium may do so upon HUD approval, and in accordance with HUD established guidelines and instructions. HUD approval of a multiple-ACC consortium will be based on the following:

(1) That written notice of the intent to form a multiple-ACC consortium has been given to HUD at least 20 days in advance. HUD may, upon a showing of good cause, provide an exception to this requirement;

(2) That all required documentation has been submitted including:

(i) The Consortium Agreement;

(ii) The 5-Year Plan and the Annual Plan, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements (see § 943.317, Planning, reporting, and financial accountability);

(iii) A letter of intent signed by the executive director of every PHA wishing to join the multiple-ACC consortium, with the accompanying board resolution of each PHA;

(iv) Any memoranda of understanding (MOUs) and/or other agreements to operate within the jurisdiction of other consortium members, including supporting legal opinions, satisfactory to HUD, that such agreements are in compliance with the applicable state and local laws of each consortium member;

(v) Financial documentation for each PHA wishing to join the multiple-ACC consortium, including a final close-out audit for every PHA joining the multiple-ACC consortium, up to the effective date of the consortium; and

(vi) Any other form of documentation that HUD deems necessary and appropriate for approval of the multiple-ACC consortium;

(3) That the lead agency is not designated as a “troubled PHA” by HUD under the Public Housing Assessment System (PHAS) or by the PHA's performance rating under Section 8 Management Assessment Program (SEMAP), and whether there are any open findings from an OIG audit, HUD FO monitoring review, financial audit, or any other HUD or HUD-required review;

(4) That the financial documentation submitted by each PHA in support of multiple-ACC consortium formation demonstrates that the multiple-ACC consortium will have the financial capability to administer the programs and activities of the multiple-ACC consortium;

(5) Any other factors that may indicate the appropriateness of a multiple-ACC consortium formation, such as the PHA's capacity to administer its programs, and the existing market conditions in the jurisdiction of each PHA joining the multiple-ACC consortium; and

(6) That all other consortium requirements are met.

(b) Upon HUD approval, the multiple-ACC consortium will become effective as of January 1 of the following year. HUD may, upon showing of good cause, provide an exception to this requirement.

(c) A PHA that elects to form a multiple-ACC consortium must enter into a consortium agreement among the member PHAs, specifying a lead agency (see § 943.307, Elements of a multiple-ACC consortium agreement). The executed consortium agreement must be submitted to HUD, and HUD may require modification to the consortium agreement before approving the formation of the multiple-ACC consortium. HUD enters into any necessary payment agreements with the lead agency and the other member PHAs (see § 943.313, The relationship between HUD and a multiple-ACC consortium) to provide that HUD funding to the member PHAs for program categories covered by the consortium will be paid to the lead agency.

(d) The lead agency must not be:

(i) Designated as a “troubled PHA” by HUD under PHAS or by the PHA's performance rating under SEMAP, or

(ii) Determined by HUD to fail the civil rights compliance threshold for new funding, or an agency that has had a PHAS designation withheld for civil rights or other reasons.

(e) The lead agency is designated to receive HUD program payments on behalf of member PHAs, to administer HUD requirements for administration of the funds, and to apply the funds in accordance with the consortium agreement and HUD regulations and requirements.

(g) The member PHAs must adopt the same fiscal year end so that the applicable periods for submission and review of the joint PHA plan, reporting, and audits are the same.

(h) The multiple-ACC consortium must be administered in accordance with the applicable provisions of this part, the consortium agreement, the joint PHA Plan, as applicable, and other applicable HUD regulations and requirements.

§ 943.305 Jurisdiction of a multiple-ACC consortium.

Each member PHA has its own jurisdiction, and will continue to operate in that jurisdiction. However, member PHAs may enter into memoranda of understanding (MOUs) and/or other agreements, in accordance with applicable state law, to operate within the jurisdictions of other member PHAs in order to further the goals of the consortium and to expand housing opportunities for assisted families.

§ 943.307 Elements of a multiple-ACC consortium agreement.

(a) The multiple-ACC consortium agreement governs the formation and operation of the consortium. The consortium agreement must be consistent with any payment agreements between the member PHAs and HUD and must specify the following:

(1) The names of the member PHAs and the program categories each PHA is including under the consortium agreement;

(2) The name of the lead agency;

(3) The functions to be performed by the lead agency and the other member PHAs during the term of the consortium;

(4) The allocation of funds among member PHAs, including funding awards made following formation of the multiple-ACC consortium, and responsibility for administration of funds paid to the consortium;

(5) The structure of the multiple-ACC consortium; and

(6) The terms under which a PHA may join or withdraw from the multiple-ACC consortium. The consortium agreement shall conform to § 943.309 (Withdrawals from or additions to a multiple-ACC consortium) of this subpart.

(b) The agreement must acknowledge that the member PHAs are subject to the joint PHA Plan submitted by the lead agency.

(c) The agreement must be signed by an authorized representative of each member PHA.

§ 943.309 Withdrawals from or additions to a multiple-ACC consortium.

(a) Withdrawal refers to one or more consortium member leaving the multiple-ACC consortium without resulting in dissolution of the multiple-ACC consortium.

(b) Withdrawals from a multiple-ACC consortium may not occur until the initial 5-year consortium term has expired. HUD may, upon showing of good cause, allow withdrawals from a multiple-ACC consortium before completion of the initial 5-year term.

(c) If the consortium has any outstanding civil rights matters, withdrawals from a multiple-ACC consortium may not occur unless the withdrawal is consistent with the action(s) to resolve such matters.

(d) To provide for orderly transition, withdrawal of a PHA must take effect on the last day of the consortium's fiscal year, and addition of a PHA must take effect on the first day of the consortium's fiscal year. The multiple-ACC consortium must notify HUD, in writing, of any additions or withdrawals at least 120 days in advance. This notification must include submission of the withdrawing member PHA's replacement 5-Year Plan and Annual Plan, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(e) Because each member PHA retains its own ACC with HUD, upon withdrawal from the multiple-ACC consortium, the withdrawing PHA begins to operate in accordance with its own ACC with HUD.

§ 943.311 Dissolution of a multiple-ACC consortium.

(a) A multiple-ACC consortium may not be dissolved prior to the expiration of the initial 5-year consortium term. HUD may, upon showing of good cause, allow dissolution of a consortium prior to completion of the initial 5-year term. A multiple-ACC consortium will continue to exist beyond the initial 5-year consortium term, unless dissolved.

(b) If the consortium has any outstanding civil rights matters, dissolution of a multiple-ACC consortium may not occur unless the dissolution is consistent with the action(s) to resolve such matters.

(c) Dissolution of the multiple-ACC consortium must take effect on the last day of the consortium's fiscal year. The multiple-ACC consortium must notify HUD of the dissolution, in writing, at least 120 days in advance. This notification must include submission of all member PHA's replacement 5-Year Plans and Annual Plans, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(d) Because each member PHA retains its own ACC with HUD, upon dissolution of the consortium, each member PHA begins to operate as it did prior to the formation of the consortium.

§ 943.313 The relationship between HUD and a multiple-ACC consortium.

(a) HUD has a direct relationship with the consortium through the joint PHA Plan, as applicable, and through one or more payment agreements, executed in a form prescribed by HUD, under which HUD and the member PHAs agree that program funds will be paid to the lead agency on behalf of the member PHAs. Such funds must be used in accordance with the consortium agreement, the joint PHA Plan, and HUD regulations and requirements.

(b) HUD may take any of the remedies described in the ACC against an individual member in a multiple-ACC consortium or against the multiple-ACC consortium as a whole, if it determines that either has substantially violated—or is improperly administering—the requirements of any of its programs.

§ 943.315 Organizational costs and administrative fees.

(a) The administrative fee for the Section 8 HCV program for each member PHA in a multiple-ACC consortium will be based on the published administrative fee for each member PHA prior to formation of the consortium.

(b) If appropriations are available, a multiple-ACC consortium may be eligible, during the first year of operation of the consortium, for administrative fees to cover extraordinary costs determined necessary by HUD in accordance with 24 CFR 982.152(a)(1)(iii)(C) for the organization and implementation of the multiple-ACC consortium.

§ 943.317 Planning, reporting, and financial accountability.

(a) During the term of the consortium agreement, the consortium must submit joint 5-Year Plans and joint Annual Plans, as applicable, for all member PHAs, in accordance with 24 CFR part 903 and any other statutory or HUD requirements. For any programs not covered by the multiple-ACC consortium (e.g., a member PHA administers a public housing or Section 8 HCV program separately from the multiple-ACC consortium), member PHAs must submit a separate 5-Year Plan and Annual Plan to HUD for those programs, as applicable, in accordance with 24 CFR part 903 and any other statutory or HUD requirements.

(b) The lead agency must maintain records and submit reports to HUD, in accordance with HUD regulations and requirements, for all of the member PHAs. All PHAs will be bound by the 5-Year and Annual Plans and reports submitted to HUD by the multiple-ACC consortium for programs covered by the consortium.

(c) Each member PHA must keep a copy of the consortium agreement on file for inspection. The consortium agreement must also be a supporting document to the joint PHA Plan.

(d) Prior to entering a multiple-ACC consortium, each PHA must agree to the completion of a final audit to close-out program accounts for all programs covered by the multiple-ACC consortium, up to the effective date of the consortium.

(e) Independent audits and performance assessment requirements will be applied in the following way:

(1) Where the lead agency will manage substantially all programs and activities of the consortium, HUD interprets financial accountability to rest with the consortium and, thus, HUD will apply independent audit and performance assessment requirements on a consortium-wide basis.

(2) Where the lead agency will not manage substantially all programs and activities of a consortium, the consortium shall indicate in its PHA Plan submission which PHAs have financial accountability for the programs. The determination of financial accountability shall be made in accordance with generally accepted accounting principles, as determined in consultation with an independent public accountant. In such situations, HUD will apply independent audit and performance assessment requirements consistent with that determination. With respect to any consortium, however, HUD may determine (based on a request from the multiple-ACC consortium or other circumstances) to apply independent audit and performance requirements on a different basis where this would promote sound management.

§ 943.319 Responsibilities of member PHAs.

Despite participation in a consortium, each member PHA remains responsible for its own obligations under its ACC with HUD. This means that each member PHA has an obligation to assure that all program funds, including funds paid to the lead agency for administration by the consortium, are used in accordance with HUD regulations and requirements, and that the PHA's program is administered in accordance with HUD regulations and requirements. Any breach of program requirements with respect to a program covered by the consortium agreement is a breach of the ACC with each of the member PHAs, so each PHA is responsible for the performance of the consortium.

Subpart D—Subsidiaries, Affiliates, Joint Ventures in Public Housing§ 943.401 Programs and activities covered under this subpart.

(a) This subpart applies to the provision of a PHA's public housing administrative and management functions, and to the provision (or arranging for the provision) of supportive and social services in connection with public housing. This subpart does not apply to activities of a PHA that are subject to the requirements of 24 CFR part 905, subpart F.

(b) For purposes of this subpart, the term “joint venture partner” means a member (other than a PHA) in a joint venture, partnership, or other business arrangement or contract for services with a PHA.

(c) This part does not affect a PHA's authority to use joint ventures, as may be permitted under state law, when using funds that are not 1937 Act funds.

§ 943.403 Types of operating organizations for a participating PHA.

(a) A PHA may create and operate a wholly owned or controlled subsidiary or other affiliate; and may enter into joint ventures, partnerships, or other business arrangements with individuals, organizations, entities, or governmental units. A subsidiary or affiliate may be a nonprofit corporation. A subsidiary or affiliate may be an organization controlled by the same persons who serve on the governing board of the PHA or who are employees of the PHA.

(b) The purpose of any of these operating organizations would be to administer programs of the PHA.

§ 943.405 Financial impact of a subsidiary, affiliate, or joint venture on a PHA.

Income generated by subsidiaries, affiliates, or joint ventures formed under the authority of this subpart is to be used for low-income housing or to benefit the residents assisted by the PHA. This income will not cause a decrease in funding provided under the public housing program, except as otherwise provided under the Operating Fund and Capital Fund formulas.

§ 943.407 Financial accountability of a subsidiary, affiliate, or joint venture to HUD and the Federal Government.

The subsidiary, affiliate, or joint venture is subject to the same authority of HUD, HUD's Inspector General, and the Comptroller General to audit its conduct.

(a) The requirements of 24 CFR part 85 are applicable to this part, subject to paragraph (b) of this section, in connection with the PHA's public housing program.

(b) A PHA may use competitive proposal procedures for qualifications-based procurement (Request for Qualifications), or may solicit a proposal from only one source (“sole source”) to select a joint venture partner to perform an administrative or management function of its public housing program or to provide, or arrange to provide, supportive or social services covered under this part, under the following circumstances:

(1) The proposed joint venture partner has under its control and will make available to the partnership substantial, unique, and tangible resources or other benefits that would not otherwise be available to the PHA on the open market (e.g., planning expertise, program experience, or financial or other resources). In this case, the PHA must maintain documentation to substantiate both the cost reasonableness of its selection of the proposed partner and the unique qualifications of the partner; or

(2) A resident group or a PHA subsidiary is willing and able to act as the PHA's partner in performing administrative and management functions or to provide supportive or social services. This entity must comply with the requirements of 24 CFR part 84 (if the entity is a nonprofit) or 24 CFR part 85 (if the entity is a state or local government) with respect to its selection of the members of the team, and the members must be paid on a cost-reimbursement basis only. The PHA must maintain documentation that indicates both the cost reasonableness of its selection of a resident group or PHA subsidiary and the ability of that group or subsidiary to act as the PHA's partner under this provision.

(a) General. A joint venture partner is not a grantee or subgrantee and, accordingly, is not required to comply with 24 CFR part 84 or 24 CFR part 85 in its procurement of goods and services under this part. The partner must comply with all applicable state and local procurement and conflict of interest requirements with respect to its selection of entities to assist in PHA program administration.

(b) Exception. If the joint venture partner is a subsidiary, affiliate, instrumentality, or identity of interest party of the PHA, it is subject to the requirements of 24 CFR part 85. HUD may, on a case-by-case basis, exempt such a joint venture partner from the need to comply with requirements under 24 CFR part 85 if HUD determines that the joint venture has developed an acceptable alternative procurement plan.

(c) Contracting with identity-of-interest parties. A joint venture partner may contract with an identity-of-interest party for goods or services, or a party specified in the selected bidder's response to a Request for Proposal or Request for Qualifications (as applicable), without the need for further procurement if:

(1) The PHA can demonstrate that its original competitive selection of the partner clearly anticipated the later provision of such goods or services;

(2) Compensation of all identity-of-interest parties is structured to ensure there is no duplication of profit or expenses; and

(3) The PHA can demonstrate that its selection is reasonable based upon prevailing market costs and standards, and that the quality and timeliness of the goods or services is comparable to that available in the open market. For purposes of this paragraph (c), an “identity-of-interest party” means a party that is wholly owned or controlled by, or that is otherwise affiliated with, the partner or the PHA. The PHA may use an independent organization experienced in cost valuation to determine the cost reasonableness of the proposed contracts.

§ 943.413 Procurement standards for a joint venture.

(a) When the joint venture as a whole is controlled by the PHA or an identity-of-interest party of the PHA, the joint venture is subject to the requirements of 24 CFR part 85.

(b) If a joint venture is not controlled by the PHA or an identity-of-interest party of the PHA, then the rules that apply to the other partners apply. (See § 943.411, Procurement standards apply for a PHA's joint venture partner).

This document withdraws part of a notice of proposed rulemaking that specifically relates to rollovers from individual retirement arrangements (IRAs). The partial withdrawal of the proposed regulation will affect individuals who maintain IRAs and financial institutions that are trustees, custodians, or issuers of IRAs.

DATES:

As of July 11, 2014, the proposed amendment to § 1.408-4(b)(4)(ii), published Tuesday, July 14, 1981 (46 FR 36198), is withdrawn.

FOR FURTHER INFORMATION CONTACT:

Vernon S. Carter at (202) 317-6700 (not a toll-free number).

SUPPLEMENTARY INFORMATION:Background

Section 408(d) governs distributions from IRAs. Generally, section 408(d)(1) provides that any amount distributed from an IRA is includible in gross income by the payee or distributee. Section 408(d)(3)(A)(i) allows a payee or distributee of an IRA distribution to exclude from gross income any amount paid or distributed from an IRA that is subsequently paid into an IRA not later than the 60th day after the day on which the payee or distributee receives the distribution. Section 408(d)(3)(A)(i) and (d)(3)(D)(i). Section 408(d)(3)(B) provides that an individual is permitted to make only one nontaxable rollover described in section 408(d)(3)(A)(i) in any 1-year period.

On July 14, 1981, the Federal Register published proposed regulations (46 FR 36198) that would have amended § 1.408-4 of the Income Tax Regulations by adding a new paragraph (b)(4)(ii). Those proposed regulations provide that the rollover limitation of section 408(d)(3)(B) is applied on an IRA-by-IRA basis. This rule is reflected in IRS Publication 590, Individual Retirement Arrangements (IRAs). However, section 408(d)(3)(B) provides that the exclusion from gross income for IRA rollovers pursuant to subparagraph (A)(i) does not apply “if at any time during the 1-year period ending on the day of such receipt such individual received any other amount described in that subparagraph from an individual retirement account or an individual retirement annuity which was not includible in his gross income because of the application of this paragraph.”

Based on the language in section 408(d)(3)(B), a recent Tax Court opinion, Bobrow v. Commissioner, T.C. Memo. 2014-21, held that the limitation applies on an aggregate basis. Thus, under Bobrow, an individual cannot make an IRA-to-IRA rollover if the individual has made an IRA-to-IRA rollover involving any of the individual's IRAs in the preceding 1-year period. The IRS intends to follow the opinion in Bobrow and, accordingly, is withdrawing paragraph (b)(4)(ii) of § 1.408-4 of the proposed regulations and will revise Publication 590. This interpretation of the rollover rules under section 408(d)(1)(B) does not affect the ability of an IRA owner to transfer funds from one IRA trustee or custodian directly to another, because such a transfer is not a rollover and, therefore, is not subject to the one-rollover-per-year limitation of section 408(d)(3)(B). See Rev. Rul. 78-406, 1978-2 C.B. 157.

In response to comments expressing concern over implementation of the rollover limitation as interpreted in Bobrow, the IRS released Announcement 2014-15, 2014-16 I.R.B. 973, on March 20, 2014. Announcement 2014-15 addresses the application to Individual Retirement Accounts and Individual Retirement Annuities of the one-rollover-per-year limitation of section 408(d)(3)(B) and provides transition relief for owners. Consistent with that Announcement, the IRS will not apply the Bobrow interpretation of section 408(d)(3)(B) to any rollover that involves a distribution occurring before January 1, 2015.

List of Subjects in 26 CFR Part 1

Treatment of distributions from individual retirement arrangements.

Partial Withdrawal of Proposed Rulemaking

For the reasons stated in the preamble and under the authority of 26 U.S.C. 7805, the Internal Revenue Service withdraws the proposed amendment to § 1.408-4(b)(4)(ii).

The Coast Guard is proposing a temporary special local regulation on the navigable waters of the Atlantic Ocean off Long Beach, NY during the Great Race On The Sea Powerboat Race. This action is necessary to provide for the safety of life of participants and spectators during this event. Entering into, transiting through, remaining, anchoring or mooring within these regulated areas would be prohibited unless authorized by the Captain of the Port (COTP) Sector Long Island Sound.

DATES:

Comments and related material must be received by the Coast Guard on or before August 11, 2014.

Requests for public meetings must be received by the Coast Guard on or before July 18, 2014.

ADDRESSES:

You may submit comments identified by docket number using any one of the following methods:

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Petty Officer Scott Baumgartner, Prevention Department, Coast Guard Sector Long Island Sound, (203) 468-4559, Scott.A.Baumgartner@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:Table of AcronymsCOTP Captain of the PortDHS Department of Homeland SecurityFR Federal RegisterNPRM Notice of Proposed RulemakingA. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number [USCG-2014-0407] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0407) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

4. Public meeting

We do not plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES on or before July 18, 2014. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

In 2013, the Event Sponsor, Great South Bay Racing Inc. sponsored a similar powerboat racing event that was held in the same location, with the same race course, in the same timeframe but with a different event name, “Long Beach Regatta”. The Coast Guard issued a temporary final rule entitled, “Special Local Regulations: Long Beach Regatta, Powerboat Race, Atlantic Ocean, Long Beach, NY” that was effective on August 25, 2013 for this event.

C. Basis and Purpose

The legal basis for this proposed rule is 33 U.S.C. 1233 and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory special local regulations. This rule would establish a special local regulation in order to provide for the safety of life on navigable waters during the Great Race On The Sea Powerboat Race.

D. Discussion of Proposed Rule

Great South Bay Racing Inc. is sponsoring the Great Race On The Sea Powerboat Race, an offshore powerboat race, located on the Atlantic Ocean off Long Beach, NY. The event will span two days with race trials and practice runs conducted on Saturday, August 23, 2014 from 8:30 a.m. until 3:30 p.m., and the actual races conducted on Sunday, August 24, 2014 from 8:30 a.m. until 6:30 p.m. The event will feature six classes of offshore powerboats including vessels from the Extreme Class which can reach speeds up to 150 miles per hour during the race. The sponsor expects a minimum of 5,000 spectators for this event with a portion of them expected to view the event from recreational vessels.

The COTP Sector Long Island Sound has determined the combination of increased numbers of recreational vessels in close proximity to this event and registered event participants operating powerboats at high speeds have the potential to result in serious injuries or fatalities. This special local regulation proposes temporary regulated areas to restrict vessel movement around the location of the powerboat race to reduce the risks associated with racing vessels operating within congested waterways. For these reasons the Coast Guard is proposing three temporary regulated areas on the Atlantic Ocean, from 8:30 a.m. to 3:30 p.m. on August 23, 2014 and from 8:30 a.m. to 6:30 p.m. on August 24, 2014:

(1) Race Course Area. This area is for the exclusive use of registered event participants, safety, support, and official vessels.

(2) No Entry Area. This area serves as a buffer zone that separates racing vessels from spectators.

(3) Spectator Viewing Area. This area is for the exclusive use of spectator vessels. The sponsor will mark this area.

The geographic locations of these regulated areas and specific requirements of this rule are contained in the regulatory text.

Because a number of spectator vessels are expected to congregate around the location of this event, these regulated areas are needed to protect both spectators and participants from the safety hazards created by them, including powerboats traveling at high speeds and congested waterways. During the enforcement periods, persons and vessels would be prohibited from entering, transiting through, remaining, anchoring or mooring within the regulated areas unless stipulated otherwise or specifically authorized by the COTP or the designated representative. The Coast Guard may be assisted by other federal, state, and local agencies in the enforcement of these regulated areas.

The Coast Guard determined that these regulated areas would not have a significant impact on vessel traffic due to their temporary nature and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas.

The Coast Guard has ordered special local regulations and safety zones for this event when it was held in different locations and has received no public comments or concerns regarding the impact to waterway traffic. Advanced public notifications would be made to the local maritime community through all appropriate means which may include, but is not limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

E. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard determined that this proposed rulemaking is not a significant regulatory action because the regulated areas would be of limited duration and vessels may transit the navigable waterways outside of the regulated areas. Additionally, persons or vessels requiring entry into the regulated areas may be authorized to do so by the COTP Sector Long Island Sound or designated representative.

Advanced public notifications would also be made to local mariners through appropriate means, which may include but is not limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit, anchor or moor within the regulated areas on August 23, 2014 from 8:30 a.m. to 3:30 p.m. and on August 24, 2014 from 8:30 a.m. until 6:30 p.m.

This proposed temporary special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated areas are of short duration, vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as regulated areas, and vessels requiring entry into the regulated areas may be authorized to do so by the COTP Sector Long Island Sound or designated representative. Additionally, before the effective period, public notifications would be made to local mariners through appropriate means, which may include but is not limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of special local regulations. This rule may be categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS1. The authority citation for part 100 continues to read as follows:Authority:

33 U.S.C. 1233.

2. Add § 100.35T01-0407 to read as follows:§ 100.35T01-0407 Special Local Regulation; Great Race On The Sea, Powerboat Race, Atlantic Ocean, Long Beach, NY.

(a) Regulated Areas. All coordinates are North American Datum 1983 (NAD 83).

(1) “Race Course Area”: All navigable waters of the Atlantic Ocean off Long Beach, NY within the following boundaries: Beginning at point “A” at position 40°34′15.84″ N, 073°36′03.82″ W, then west to point “B″ at position 40°34′06.68″ N, 073°40′09.27″ W, then north to point “C” at position 40°34′48.56″ N, 073°40′08.70″ W, then east to point “D″ at position 40°34′53.33″ N, 073°36′14.93″ W, then south to the point of origin, point “A”.

(2) “No Entry Area”: A buffer zone comprising all navigable waters of the Atlantic Ocean surrounding the “Race Course Area” and extending from the south border 700 feet outwards, from the east and west borders 1000 feet outwards and from the north border extending to the shoreline.

(3) “Spectator Viewing Area”: All navigable waters of the Atlantic Ocean off Long Beach, NY within the following boundaries: Beginning at point “A” at position 40°34′00.59″ N, 073°35′53.34″ W, then west to point “B” at position 40°33′54.27″ N, 073°38′33.75″ W, then north to point “C” at position 40°34′03.29″ N, 073°38′34.11″ W, then east to point “D” at position 40°34′09.15″ N, 073°35′56.24″ W, then south to the point of origin, point “A”.

(b) Special Local Regulations.

(1) In accordance with the general regulations found in section 100.35 of this part, entering into, transiting through, anchoring or remaining within the regulated areas is prohibited unless authorized by the Captain of the Port (COTP) Sector Long Island Sound, or designated representative.

(2) The following persons and vessels are authorized by the COTP Sector Long Island Sound to enter areas of this special local regulation:

(3) All persons and vessels shall comply with the instructions of the COTP Sector Long Island Sound or designated representative. These designated representatives are comprised of commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means the operator of a vessel shall proceed as directed.

(4) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated areas must contact the COTP Sector Long Island Sound by telephone at (203) 468-4401, or designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated areas is granted by the COTP Sector Long Island Sound or designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Sector Long Island Sound or designated representative.

(5) The Coast Guard will provide notice of the regulated areas prior to the event through appropriate means, which may include but is not limited to, the Local Notice to Mariners and Broadcast Notice to Mariners.

(c) Definitions. The following definitions apply to this section:

(1) Designated Representative. A “designated representative” is any commissioned, warrant, or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Long Island Sound to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

(2) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Sector Long Island Sound.

(3) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.

(d) Enforcement Period: This section will be enforced from 8:30 a.m. until 3:30 p.m. on August 23, 2014 and from 8:30 a.m. until 6:30 p.m. on August 24, 2014.

The electronic sharing of information and documents between intellectual property (IP) offices is critical for increasing the efficiency and quality of patent examination worldwide. Current examples of this sharing include the priority document exchange (PDX) program and the program by which U.S. search results are delivered to the European Patent Office (EPO). In support of electronic file sharing, the United States Patent and Trademark Office (Office) is proposing to amend its rules of practice to include a specific provision by which an applicant can authorize the Office to give a foreign IP office access to all or part of the file contents of an unpublished U.S. patent application in order to satisfy a requirement for information imposed on a counterpart application filed with the foreign intellectual property office. Currently, for unpublished U.S. patent applications, applicants follow one regulatory provision to provide the Office with authorization for a foreign IP office to access an application-as-filed via a PDX program and follow another regulatory provision to provide the Office with authorization to share the file contents with a foreign IP office. The proposed changes to the rules will consolidate the specific provisions of the regulations by which applicants give the Office authority to provide a foreign IP office with access to an application in order to satisfy a requirement for information of the foreign IP office. Additionally, along with changes to the application data sheet (ADS) form, the proposed rule changes will simplify the process for how applicants provide the Office with the required authorization, thereby reducing the resources applicants must expend to comply with these foreign IP office requirements, and enhance the quality of patent examination.

Comments further may be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site (http://www.regulations.gov) for additional instructions on providing comments via the Federal eRulemaking Portal.

Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message over the Internet because sharing comments with the public is more easily accomplished. Electronic comments are preferred to be submitted in plain text, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.

The comments will be available for public inspection at the Office of the Commissioner for Patents, currently located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site (http://www.uspto.gov). Because comments will be made available for public inspection, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments.

The electronic sharing of information and documents between IP offices is critical for increasing the efficiency and quality of patent examination worldwide. The electronic sharing of documents between IP offices also benefits applicants by reducing the cost of ordering documents from one IP office and then filing them in another IP office where a counterpart application has been filed.

Due to the confidential nature of unpublished U.S. patent applications, set forth in 35 U.S.C. 122, an applicant must provide the Office with written authority in accordance with 37 CFR 1.14 to grant a foreign IP office access to an unpublished U.S. patent application. With this grant of authority, the Office may electronically provide the U.S. patent application-as-filed or the requested file contents, such as information and documents, from the U.S. patent application to the foreign IP office on behalf of the applicant.

Currently, applicants comply with 37 CFR 1.14(h) when authorizing the Office to give a foreign IP office participating in a bilateral or multilateral priority document exchange agreement access to an unpublished U.S. priority application-as-filed. 37 CFR 1.14(h), however, does not provide a specific provision by which an applicant can authorize the Office to provide a foreign IP office access to an unpublished U.S. patent application's file contents including documents and other information in order to satisfy a requirement for information imposed on a counterpart application from a U.S. applicant by the foreign IP office. As a result, U.S. applicants, unprompted by the rules, must provide written authority for access by a foreign IP office to an unpublished application's contents in accordance with 37 CFR 1.14(c).

The Office is proposing to amend 37 CFR 1.14(h) to include a specific provision by which an applicant can authorize the Office to give a foreign IP office access to all or part of the file contents (as opposed to a copy of the application-as-filed) of an unpublished patent application, including search results, to satisfy a foreign IP office requirement for information on a counterpart application filed by an U.S. applicant. The proposed changes to 37 CFR 1.14(h) would consolidate the provisions by which applicants authorize the Office to give access to an unpublished application-as-filed or its file contents to a foreign IP office, while also clarifying for applicants the provision of 37 CFR 1.14 under which such access authorization can be provided. The proposed rule change will further serve as a reminder of the opportunity for applicants to grant the Office with the authority to provide a foreign IP office with access to file contents of an unpublished U.S. patent application.

Any information concerning an unpublished application or documents from an unpublished application will only be shared in accordance with the authority provided by applicant and in accordance with the terms of any agreement between the Office and respective foreign IP offices. The Office is not proposing any fee for this service. In addition, sharing of information and documents would be limited to those foreign IP offices where applicant has filed a counterpart application and provided written authority to give a foreign IP office access to all or part of the file contents of an unpublished U.S. application.

The proposed changes to 37 CFR 1.14(h) emphasize the Office's continued support of work sharing efforts between IP offices to increase the quality of issued patents, as well as its commitment to assist in reducing the expenditure of resources of its applicants when complying with the requirements of a foreign IP office for a counterpart application.

Revision to Application Data Sheet Form: In addition to the proposed rule changes, the Office is planning to revise the application data sheet (ADS) form, PTO/AIA/14 (ADS form). The revised ADS form would include separate access authorizations for the PDX program and certain work sharing initiatives for which the Office has an agreement with one or more foreign IP offices.

The submission of a properly signed revised ADS form with the appropriate authorization language would be a specific act authorizing access. After a revised ADS form including the authorization language for access by foreign IP office(s) and signed in accordance with 37 CFR 1.14(c) and 1.33(b) has been submitted and placed in the application file, the Office would give the foreign IP office(s) access to the contents in accordance with the specific authorization language upon request of the foreign IP office.

In contrast to the current ADS form, the revised ADS form would include an “opt-out” check box for each access authorization and not an “opt-in” check box. Therefore, when an “opt-out” check box for a specific authorization to access is selected, the Office would not provide access to the contents of the application associated with that check box. The revised ADS form will make it easier for applicants to give the statutorily required authorization for access to specific file contents, as well as afford an applicant the opportunity to inform the Office that the required authority to allow a foreign IP office specific access to an application has not been given. Appropriate authorization language for access in any ADS generated by applicant must mirror the authorization language provided in the Office's revised ADS form. Where an applicant-generated ADS does not include the required authorization language for access by a foreign IP office, the ADS will be interpreted as not providing the authorization necessary to give a foreign IP office access.

The changes to the Office's ADS form should reduce those instances where an applicant inadvertently fails to provide authorization necessary to participate in PDX (by not selecting the opt-in check box for priority document exchange authorization on the current ADS form) and, as a result, must expend resources to obtain and file a copy of a U.S. priority document with a foreign IP office. Similarly, this approach will help eliminate those instances where an applicant inadvertently fails to give the Office authority (by filing form PTO/SB/69) to provide the EPO with the search results from an unpublished U.S. priority application and, as a consequence, must expend resources to file the results with the EPO.

The Office will not deliver an unpublished priority document, file contents of an unpublished application, including information about an unpublished application, to a foreign IP office, even where a counterpart application has been filed, if applicant does not provide proper written authority for access. As discussed above, the revised ADS form would need to be executed in accordance with 37 CFR 1.33(b), and if there is written authority for any access by a foreign IP office, the revised ADS form also must be executed in accordance with 37 CFR 1.14(c). Applicants should be aware of the differences in signature requirements under 37 CFR 1.33(b) and under 37 CFR 1.14(c). For example, under 37 CFR 1.33(b) in applications filed on or after September 16, 2012, the following individuals can sign:

• A patent practitioner of record;

• A patent practitioner not of record who acts in a representative capacity under the provisions of 37 CFR 1.34; or

• The applicant under 37 CFR 1.42. Unless otherwise specified, all papers submitted on behalf of a juristic entity must be signed by a patent practitioner.

By contrast, under 37 CFR 1.14(c) in applications filed on or after September 16, 2012, the following individuals can sign:

• The applicant;

• A patent practitioner of record;

• The assignee or an assignee of an undivided part interest;

• The inventor or a joint inventor; or

• A registered attorney or agent named in the papers accompanying the application papers filed under 37 CFR 1.53 or the national stage under 37 CFR 1.495, if a power of attorney has not been appointed under 37 CFR 1.32.

Where forms PTO/SB/39 for PDX authorization and PTO/SB/69 for search results authorization are used instead of the revised ADS form, these forms must still be executed in accordance with 37 CFR 1.14(c) even though written authority is provided for under proposed 37 CFR 1.14(h). If the revised ADS form is not signed in accordance with the relevant rules, then applicant has not provided written authority for access by a foreign IP office to an application.

The transaction of sharing documents and information from a U.S. application with a foreign IP office has several built in safeguards to ensure that only authorized sharing occurs. For example, in order for a foreign IP office to receive information about a U.S. application, the Office requires that the foreign IP office expressly identify the U.S. application serial number, along with other elements of bibliographic data for each U.S. application in its request, to ensure that only the correct U.S. application's information will be given to the foreign IP office. Once the application is properly identified, the Office will then determine whether the requisite authorization for access exists in the U.S. application. The Office will only share information or other file content from a U.S. application with a foreign IP office when both the correct application is identified and the existence of proper authorization is confirmed. If an unpublished application, which has not been foreign filed, includes an unintended access authorization pursuant to proposed 37 CFR 1.14(h), a foreign IP office would not obtain access because it would not have the information necessary to request access to that specific U.S. application. Further, the U.S. application's filing receipt will indicate whether applicant has provided written authority for access pursuant to proposed 37 CFR 1.14(h). Applicants should inspect the application filing receipt and request a corrected filing receipt if authorization for access under proposed 37 CFR 1.14(h) was incorrectly captured from the revised ADS form or applicant-generated ADS. If authorization for access was inadvertently given, a request for rescission of the authorization can be made, and the Office should be informed of such rescission as early as possible so the Office has time to recognize the request for rescission and act upon it.

To avoid inconsistent means of authorization for access and to avoid duplicative processing, the Office also is considering removal of the opt-in check box and associated authorization language for the PDX program from the inventor's oath or declaration form (PTO/SB/01 for applications filed before September 16, 2012 and PTO/AIA/08 for applications filed on or after September 16, 2012). Form PTO/SB/39 for the priority document exchange authorization and Form PTO/SB/69 for the search results authorization will remain available for applicants that do not use an ADS form or have selected the check boxes for opting out of specific authorizations for access by a foreign IP office on the revised ADS form, but later decide to give a foreign IP office access to the application.

Discussion of Specific Rules: The following is a discussion of the amendments to title 37 of the Code of Federal Regulations, part 1, which are being proposed in this document.

Section 1.14: Section 1.14(h)(1) is proposed to retain the first sentence of current § 1.14(h)(1) and include the provisions from current § 1.14(h)(3). Proposed § 1.14(h)(1) also would be amended to include that the date of filing of the written authority for priority document exchange may be provided to the respective participating foreign IP office, which codifies the practice set forth in the Official Gazette of the United States Patent and Trademark Office (1328 OG 90 (March 11, 2008)). In proposed § 1.14(h)(1), the text added from current § 1.14(h)(3) has been amended to delete the language “indicated in the written authority.” This deleted language is not necessary as written authority for access under current § 1.14(h) and proposed § 1.14(h) will result in access being granted to all PDX and WIPO Digital Access Service (DAS) participating foreign IP offices in which a subsequently filed application claims benefit of the earlier filed U.S. application. Within the WIPO DAS system, however, there is an option where an applicant may decide which WIPO DAS foreign IP office(s) are granted or not granted access.

Proposed § 1.14(h)(1)(i) and (ii) also are amended to include the term “bibliographic data” to reflect that “bibliographic data” is used to ensure the correct application-as-filed is being provided to the participating foreign IP office requesting access in any access to the application-as-filed transaction. The term bibliographic data as used in proposed § 1.14(h)(1) covers certain bibliographic data set forth in WIPO standard ST.9 for bibliographic data. The bibliographic data used to confirm that the correct application-as-filed is being provided may include the patent document identification, filing data, priority data, publication data, data concerning technical information such as patent classification (international or domestic), and title of the invention.

Proposed § 1.14(h)(2) would permit an applicant to authorize the Office to grant a foreign IP office access to the file contents of an application where a counterpart application has been filed with a foreign IP office and the counterpart application is subject to a requirement for information from the application filed with the Office. The Office would only provide access to the relevant portion or portions of an unpublished U.S. application's file contents necessary to satisfy any requirement for information by the foreign IP office, triggered by the U.S. applicant filing a counterpart application with the foreign IP office. The Office and the foreign IP office would need to have a bilateral or multilateral agreement that provides for the secure transmission and receipt of any shared information. Proposed § 1.14(h)(2)(i) includes the term “bibliographic data” to reflect that “bibliographic data” is used to ensure the information is from the correct application for which access has been requested by the foreign IP office in any access to the application. The term bibliographic data as used in § 1.14(h)(2) includes the same types of bibliographic data set discussed above with respect to § 1.14(h)(1).

Current § 1.14(h)(2) has been moved to proposed § 1.14(h)(3).

Section 1.14(h)(3) as proposed indicates that written authority provided under proposed §§ 1.14(h)(1) and (h)(2) should be submitted before the filing of any subsequent foreign application in which priority is claimed to the application. Section 1.14(h)(3) as proposed also indicates that the written authority under §§ 1.14(h)(1) and (2) must include the title of the invention (§ 1.72(a)), comply with the requirements of § 1.14(c), and must be submitted on an application data sheet (§ 1.76) or on a separate document (§ 1.4(c)).

Section 1.19: Section 1.19(b)(1)(iv) is proposed to be amended to indicate there is no fee for providing a foreign IP office with a copy of either an application-as-filed or patent related file wrapper and contents pursuant to a bilateral or multilateral agreement (see § 1.14(h)).

Rulemaking Considerations

A. Administrative Procedure Act: This rulemaking amends the rules of practice to include a specific provision by which an applicant can authorize the Office to give a foreign IP office access to all or part of the file contents of an application, and thus pertains solely to the process for an applicant to provide a limited waiver of confidentiality under 35 U.S.C. 122(a) to allow a counterpart IP office access to all or part of the file contents of an application. Therefore, the changes proposed in this rulemaking involve rules of agency practice and procedure and/or interpretive rules. See Bachow Commc'ns Inc. v. F.C.C., 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims).

Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law). See Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”) (quoting 5 U.S.C. 553(b)(A)). The Office, however, is publishing these proposed changes for comment as it seeks the benefit of the public's views on the Office's proposed changes to provide the Office with authority to give a foreign IP office access to all or part of the file contents of an application.

B. Regulatory Flexibility Act: For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes proposed in this document will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

This rulemaking amends the rules of practice to include a specific provision by which an applicant can authorize the Office to give a foreign IP office access to all or part of the file contents of an application. This rulemaking consolidates and clarifies in one place—37 CFR 1.14(h)—existing procedures in both 37 CFR 1.14(c) and (h) relevant to authorizing the Office to provide a foreign IP office access to all or part of the file contents of an application or to an application-as-filed. The changes in this rulemaking do not require any applicant to provide the Office with this authority. There is no fee for this service. Therefore, the changes proposed in this document will not have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the United States Patent and Trademark Office will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this proposed rule are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this proposed rule is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this proposed rule do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

O. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This rulemaking involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). The collection of information involved in this rulemaking has been reviewed and previously approved by OMB under OMB Control Numbers 0651-0031 and 0651-0032. The Office is not resubmitting an information collection package to OMB for its review and approval because the changes in this rulemaking do not change patent fees or change the information collection requirements (the estimated number of respondents, time per response, total annual respondent burden hours, or total annual respondent cost burden) associated with the information collections approved under OMB Control Numbers 0651-0031 and 0651-0032.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.

(h) Access by a Foreign Intellectual Property Office. (1) Access to an application-as-filed may be provided to any foreign intellectual property office participating with the Office in a bilateral or multilateral priority document exchange agreement (participating foreign intellectual property office), if the application contains written authority granting such access. Written authority provided under this paragraph (h)(1) will be treated as authorizing the Office to provide to all participating foreign intellectual property offices in accordance with their respective agreements with the Office:

(i) A copy of the application-as-filed and its related bibliographic data;

(ii) A copy of the application-as-filed of any application the filing date of which is claimed by the application in which written authority under this paragraph (h)(1) is filed and its related bibliographic data; and

(iii) The date of filing of the written authorization under this paragraph (h)(1).

(2) Access to the file contents of an application may be provided to a foreign intellectual property office if a counterpart application filed with the foreign intellectual property office is subject to a requirement for information from the application filed with the Office, the application contains written authority granting the foreign intellectual property office access to the required information, and the Office and the foreign intellectual property office have a bilateral or multilateral agreement to provide the required information. Written authority provided under this paragraph (h)(2) will be treated as authorizing the Office to provide to all foreign intellectual property offices indicated in the written authority in accordance with their respective agreements with the Office:

(i) Bibliographic data regarding the application; and

(ii) Any content of the application file necessary to satisfy the foreign intellectual property office requirement for information indicated in the respective agreement.

(3) Written authority provided under paragraphs (h)(1) and (h)(2) of this section must include the title of the invention (§ 1.72(a)), comply with the requirements of paragraph (c) of this section, and be submitted on an application data sheet (§ 1.76) or on a separate document (§ 1.4(c)). The written authority provided under these paragraphs should be submitted before filing any subsequent foreign application in which priority is claimed to the application.

(iv) If provided to a foreign intellectual property office pursuant to a bilateral or multilateral agreement (see § 1.14(h)): $0.00.

Dated: July 2, 2014. Michelle K. Lee,Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office.[FR Doc. 2014-16062 Filed 7-10-14; 8:45 am]BILLING CODE 3510-16-PENVIRONMENTAL PROTECTION AGENCY40 CFR Part 168[EPA-HQ-OPP-2009-0607; FRL-9913-19]RIN 2070-AJ53Labeling of Pesticide Products and Devices for Export; Clarification of RequirementsAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to amend the regulations that pertain to the labeling of pesticide products and devices that are intended solely for export. These amendments clarify that pesticide products and devices that are intended solely for export must meet the Agency's labeling requirements by attaching a label to the immediate product container or by providing collateral labeling that is either attached to the immediate product being exported or that accompanies the shipping container of the product being exported at all times when it is shipped or held for shipment in the United States. Collateral labeling will ensure the availability of the required labeling information, while allowing pesticide products and devices that are intended solely for export to be labeled for use in and consistent with the applicable requirements of the importing country.

DATES:

Comments must be received on or before August 11, 2014.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0607, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

You may be potentially affected by this action if you export a pesticide product, a pesticide device, or an active ingredient used in producing a pesticide. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include, but are not limited to: Pesticide and other agricultural chemical manufacturing (NAICS code 325320), e.g., Pesticides manufacturing, Insecticides manufacturing, Herbicides manufacturing, Fungicides manufacturing, etc.

B. What is the Agency's authority for taking this action?

This action is issued under the authority of section 25(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136w(a), to carry out the provisions of FIFRA section 17(a), 7 U.S.C. 136o(a).

C. What action is the Agency taking?

EPA is proposing to amend the regulations that pertain to the labeling of pesticide products and devices that are intended solely for export. These amendments clarify that pesticide products and devices that are intended solely for export must meet the Agency's labeling requirements by attaching a label to the immediate product container or by providing collateral labeling that is either attached to the immediate product being exported or that accompanies the shipping container of the product being exported at all times when it is shipped or held for shipment in the United States. Collateral labeling will ensure the availability of the required labeling information, while allowing pesticide products and devices that are intended solely for export to be labeled for use in and consistent with the applicable requirements of the importing country.

D. What are the impacts of this action?

There are no costs associated with this action, and the benefits provided are related to avoiding potential costs. Without these labeling provisions, registrants would be required to place export-related labeling on the immediate package of each individual pesticide product in a shipping container that is intended solely for export. According to stakeholders, the inability to use the labeling method allowed under the previous regulations could significantly increase their costs and create trade barriers.

II. BackgroundA. The April 30, 2014 Direct Final Rule

Industry stakeholders subsequently brought to the Agency's attention their concern that removing the term “supplemental labeling” resulted in the removal of a provision stating that such supplemental labeling can be attached to a shipping container holding export pesticides or devices rather than to each individual product container in a shipment. They stated that the inability of registrants to use “supplemental labeling” in that manner could create trade barriers and increase costs. The purpose of the direct final rule EPA published in the Federal Register of April 30, 2014 (79 FR 24347) (FRL-9909-82) was to address those concerns as expeditiously as possible.

As indicated in the direct final rule, EPA now believes that the term “supplemental labeling” is not the appropriate term to describe the material or documentation used to meet the requirements of the export labeling rules. To more accurately describe the materials other than “labels” that are acceptable for meeting these requirements, EPA believes that a better term is “collateral labeling.” EPA has already described collateral labeling in the Label Review Manual (LRM), p. 3-2 (see http://www.epa.gov/oppfead1/labeling/lrm/chap-03.pdf), as follows:

Bulletins, leaflets, circulars, brochures, data sheets, flyers or other written, printed or graphic matter which are referred to on the label or which are to accompany the product are known in Agency practice as “collateral labeling.” Such labeling is subject to applicable requirements of FIFRA and the Agency's regulations.

Accordingly, the direct final rule used the term “collateral labeling” in restoring the ability of exporters to comply with export labeling requirements through materials that are not attached to each individual export product's immediate container. The direct final rule provided amendments for revising existing 40 CFR 168.66 to remove the reference to 40 CFR 156.10(a)(4), and to restore the inadvertently eliminated provisions that allowed exporters to use such collateral labeling attached to, or accompanying, the product shipping container of the export pesticide at all times when shipped or held for shipment in the United States. The direct final rule also restructures 40 CFR part 168, subpart D, by moving the text in § 168.68 and some of the text in § 168.66 to new § 168.65.B. Summary of the April 6, 2011 Proposed Rule

In the Federal Register of April 6, 2011 (76 FR 18995) (FRL-8862-2), EPA issued a proposed rule to clarify, restructure, and add specificity to labeling regulations for the export of unregistered pesticide products and devices. Additionally, that proposed rule explicitly requires labeling to accompany the unregistered export pesticide product or device at all times, even when such products are being shipped between registered establishments operated by the same producer.

C. Public Comments on the April 6, 2011 Proposed Rule

Six sets of comments were submitted. Two of the commenters pointed out several inconsistencies in the use of the terms “label,” “labeling,” and “supplemental labeling” in the proposed rule. One of those commenters also urged “that all labeling requirements should be in compliance with existing regulations under 40 CFR 156.” The comments are available in the docket under docket ID number EPA-HQ-OPP-2009-0607.

EPA analyzed the comments and prepared a response to comments document, which is available in the docket under document ID number EPA-HQ-OPP-2009-0607-0016. As part of analyzing the comment on inconsistencies in the use of the terms “label,” “labeling,” and “supplemental labeling,” EPA referred to FIFRA's definitions of “label” and “labeling.” Section 2(p)(1) of FIFRA defines label as “the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.” Under FIFRA section 2(p)(2), labeling is a more inclusive term which includes labels as well as “all other written, printed, or graphic matter” that accompanies the product at any time, or to which reference is made on a label or in literature accompanying the pesticide or device. Because the two terms are not interchangeable, EPA agreed that inconsistent use could create confusion. Thus, as EPA began to write the regulatory text for the final rule, the Agency carefully evaluated the regulatory text for possibly confusing uses of the terms “label” and “labeling.”

During that evaluation, and bearing in mind the comment that “all labeling requirements should be in compliance with existing regulations under 40 CFR 156,” EPA analyzed proposed § 168.66(b). Proposed § 168.66(b) specified that “the required label information may be fully met by” and then provided several examples of ways to provide the required label information. One of the examples referred to “supplemental labeling.” At that time, EPA determined to provide a reference to the existing label regulations in 40 CFR part 156, instead of providing examples of ways to meet the required label information. Specifically, EPA referred to 40 CFR 156.10(a)(4), believing that provision would provide appropriate and accurate information.

D. The January 18, 2013 Final Rule

The final rule entitled “Labeling of Pesticide Products and Devices for Export; Clarification of Requirements” published in the Federal Register of January 18, 2013 (78 FR 4073) (FRL-9360-8). This final rule was effective on March 19, 2013, with a compliance date of January 21, 2014.

III. Withdrawal of the April 30, 2014 Direct Final Rule

In the preamble to the direct final rule, EPA explained the Agency's reasons for these amendments, and that we would withdraw that direct final rule if written adverse comment were received within 30 days of the publication of that direct final rule. Since EPA received written adverse comments, elsewhere in this issue of the Federal Register, EPA has withdrawn the direct final rule, and the direct final rule will not take effect.

In accordance with the procedures described in the April 30, 2014 direct final rule, EPA is publishing this proposed rule.

IV. Issues Raised by the Adverse Comments

EPA received two written adverse comments in response to the direct final rule. Both commenters indicated their disagreement with EPA's approach on the use of collateral labeling. Their comments indicated their belief that individual pesticide products should be properly labeled, even if intended solely for export. One commenter indicated that this would only “benefit the large pesticide producers, allowing them to cut the cost of production by not properly labeling everything.” The other commenter indicated that labeling “is critical to safe and rational use of pesticides.”

EPA believes that both commenters misinterpreted the intent of the direct final rule and interpreted the direct final rule as removing or eliminating requirements. The amendments specified in the direct final rule do not remove or eliminate label requirements for individual pesticide products or devices that are intended solely for export. The amendments would have simply clarified that the label requirements for products intended for export can be met with labeling on the individual products with the addition of collateral labeling attached to either the product or the product shipment container.

Typically, products that are manufactured in the United States for export bear a label which meets the requirements of the importing country. Since that label may not meet all the FIFRA labeling requirements contained in 40 CFR part 168, the regulations previously allowed for these products to meet those requirements by labeling attached to the shipping container. As an example, a shrink-wrapped pallet of cartons would have only one FIFRA export label attached to the shrink-wrap. A pallet of unwrapped cartons, on the other hand, would have FIFRA export labels attached to each carton. In both cases, the individual products in those cartons are individually labeled for use in the importing country and in compliance with the applicable labeling requirements of that importing country. EPA believes that collateral labeling is appropriate for shipping containers holding pesticide products and devices that are intended solely for export because it ensures the availability of the information provided by the FIFRA export label requirements while those products are in transit in the United States.

The amendments specified in the direct final rule were not to establish a new or substantively different requirement from that which existed until 2013, when a final rule inadvertently deleted the applicable provisions. After considering these adverse comments, EPA has determined no changes are needed, and is proposing the same regulatory text as that in the April 30, 2014 direct final rule.

V. FIFRA Review Requirements

In accordance with FIFRA section 25(a), EPA previously submitted the draft proposed rule to the Secretary of Agriculture (USDA), the FIFRA Scientific Advisory Panel (SAP), and the appropriate Congressional Committees. On February 10, 2014, the FIFRA SAP waived its review of this proposed rule because the changes “are administrative in nature and do not contain scientific issues that require the SAP's consideration.” On March 12, 2014, USDA waived review of this proposed rule, because this action merely “corrects the regulatory text.”

VI. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and was not, therefore, submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act (PRA)

According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, as applicable.

The information collection requirements associated with reporting under 40 CFR part 168 have already been approved by OMB pursuant to PRA under OMB control number 2070-0027 (EPA ICR No. 0161). This proposed rule is not expected to involve an increase in information collection activities. There are no additional burdens imposed by this proposed rule that requires additional review or approval by OMB.

C. Regulatory Flexibility Act (RFA)

I certify that this action, if finalized as proposed, will not have a significant economic impact on a substantial number of small entities under RFA, 5 U.S.C. 601 et seq. In making this determination, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of an initial regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities” 5 U.S.C. 603. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden effect on the small entities subject to the rule. As indicated previously, EPA is restoring a provision that was inadvertently removed from the regulation. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any State, local, or Tribal governments, because no State, local, or Tribal government is known to produce, transport, formulate, package, or export unregistered pesticide products or devices. As indicated previously, EPA is restoring a provision that was inadvertently removed from the regulation.

E. Executive Order 13132: Federalism

This action will not have substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This proposed rule does not have tribal implications because it is expected to only affect producers, transporters, formulators, packagers, and exporters of unregistered pesticide products and devices. Since no Indian Tribal government is known to produce, transport, formulate, package, or export unregistered pesticide products or devices, this action has no tribal implications. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this proposed rule.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this action does not address environmental health or safety risks disproportionately affecting children.

EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. As such, this action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

PART 168—[AMENDED]1. The authority citation for part 168 continues to read as follows:Authority:

7 U.S.C. 136-136y.

2. Revise the heading for subpart D to part 168 to read as follows:Subpart D—Procedures for Exporting Pesticides3. Add § 168.65 to subpart D to read as follows:§ 168.65 Applicability.

(a) This subpart describes the labeling requirements applicable to pesticide products and devices that are intended solely for export from the United States under the provisions of FIFRA section 17(a).

(b) This subpart applies to all export pesticide products and export pesticide devices that are exported for any purpose, including research.

(c) Export pesticide products and export pesticide devices are also subject to requirements for pesticide production reporting, recordkeeping and inspection, and purchaser acknowledgement provisions that can be found in the following parts:

(1) Pesticide production reporting requirements under FIFRA section 7 are located in part 167 of this chapter (as referenced in § 168.85(b)).

(2) Recordkeeping and inspection requirements under FIFRA section 8 are located in part 169 of this chapter (as referenced in § 168.85(a)).

Any label and labeling information requirements in §§ 168.69, 168.70, and 168.71 that are not met fully on the product label attached to the immediate product container may be met by collateral labeling that is either:

(a) Attached to the immediate product (container label); or

(b) Attached to or accompanies the shipping container of the export pesticide or export device at all times when it is shipped or held for shipment in the United States.

(a) Each export pesticide product that is registered under FIFRA section 3 or FIFRA section 24(c) must bear labeling approved by EPA for its registration or collateral labeling in compliance with § 168.66.

(a) Each export pesticide device sold or distributed anywhere in the United States must bear labeling that complies with all requirements of this section or collateral labeling in compliance with § 168.66.

EPA is proposing to revoke certain tolerances for the fungicides spiroxamine and triflumizole, the herbicides carfentrazone-ethyl and quizalofop ethyl; the insecticides amitraz, oxamyl, propetamphos, and spinosad; and the plant growth regulators ethephon and mepiquat. In addition, EPA is proposing to revoke the tolerance on rice straw for multiple active ingredients. Also, EPA is proposing to modify certain tolerances for the fungicides mancozeb, thiram, and triflumizole; and the insecticide malathion. In addition, EPA is proposing to establish new tolerances for the fungicide mancozeb. Also, in accordance with current Agency practice, EPA is proposing to make minor revisions to the tolerance expression for malathion, mepiquat, and thiram.

DATES:

Comments must be received on or before September 9, 2014.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2014-0194, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

C. What can I do if I wish the agency to maintain a tolerance that the agency proposes to revoke?

This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the Federal Register under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(f), if needed. The order would specify data needed and the timeframes for its submission, and would require that within 90 days some person or persons notify EPA that they will submit the data. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA.

EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings.

II. BackgroundA. What action is the agency taking?

EPA is proposing to revoke, modify, and establish specific tolerances for residues of the fungicides mancozeb, spiroxamine, thiram, and triflumizole; the herbicides carfentrazone-ethyl and quizalofop ethyl; the insecticides amitraz, malathion, oxamyl, propetamphos, and spinosad; and the plant growth regulators ethephon and mepiquat in or on commodities listed in the regulatory text. In addition, EPA is proposing to revoke the tolerances on rice straw for multiple active ingredients because it is no longer considered by the Agency to be a significant feed item.

Also, EPA is proposing to make minor revisions to the tolerance expressions for malathion, mepiquat, and thiram in accordance with current Agency practice to describe more clearly the measurement of residues for tolerances and coverage of metabolites and degradates of a pesticide by the tolerances. The revisions to the tolerance expressions do not substantively change the tolerance or, in any way, modify the permissible level of residues permitted by the tolerances.

EPA is proposing to revoke certain tolerances because they are no longer needed or are associated with food uses that are no longer registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The proposed tolerance actions for mancozeb and malathion are consistent with the recommendations in their Reregistration Eligibility Decisions (REDs) of 2005 and 2009, respectively. As part of the tolerance reassessment process, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each RED. REDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone number: 1-800-490-9198; fax number: 1-513-489-8695; Internet at http://www.epa.gov/ncepihom and from the National Technical Information Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161; telephone number: 1-800-553-6847 or (703) 605-6000; Internet at http://www.ntis.gov. Electronic copies are available on the Internet for the malathion and mancozeb REDs in dockets EPA-HQ-OPP-2004-0348 and EPA-HQ-OPP-2005-0176, respectively, at http://www.regulations.gov and at http://www.epa.gov/pesticides/reregistration/status.htm.

In REDs, Chapter IV on risk management, reregistration, and tolerance reassessment typically describes the regulatory position, cumulative safety determination, determination of safety for U.S. general population, and safety for infants and children. In particular, the human health risk assessment document which supports the RED describes risk exposure estimates and whether the Agency has concerns. EPA also seeks to harmonize tolerances with international standards set by the Codex Alimentarius Commission, as described in Unit III.

Explanations for proposed modifications in tolerances can be found in the RED document and in more detail in the Residue Chemistry Chapter document which supports the RED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and electronic copies for malathion and mancozeb can be found under their respective docket ID numbers, identified in Unit II.A. Electronic copies of other support documents (including explanations for proposed modifications in triflumizole tolerances) are available through EPA's electronic docket and comment system, regulations.gov at http://www.regulations.gov. You may search for this proposed rule under docket ID number EPA-HQ-OPP-2014-0194, then click on that docket ID number to view its contents.

EPA had determined at the time of the RED that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED which lists the submitted studies that the Agency found acceptable.

EPA has found that the tolerances that are proposed in this document to be modified, are safe; i.e., that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C). (Note that changes to tolerance nomenclature do not constitute modifications of tolerances). These findings are discussed in detail in each RED. The references are available for inspection as described in this document under SUPPLEMENTARY INFORMATION.

In addition, it is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or legally treated domestic commodities.

EPA is proposing to revoke specific tolerances for residues of mepiquat and triflumizole because the Agency has concluded that there is no reasonable expectation of finite residues in or on the commodities associated with the tolerances, and therefore these tolerances are no longer needed.

The determinations that there are no reasonable expectations of finite residues for the tolerances listed in this document were made based on feeding studies submitted since the time that the tolerances were originally established. These feeding studies used exaggerated amounts of the compound and did not show measurable residues of the pesticide active ingredient tested. The Agency made the determination that there is no reasonable expectation of finite residues for the pesticides active ingredient/commodity combinations listed in this proposal in memoranda of July 30, 2001 for mepiquat and October 1, 2008 for triflumizole. Copies of these memoranda can be found in the docket for this proposed rule. Because EPA determined that there is no reasonable expectation of finite residues, under 40 CFR 180.6 the tolerances are no longer needed under FFDCA and can be proposed for revocation.

1. Multiple active ingredients. EPA has determined that rice straw is no longer a significant feed item in the United States, and therefore the tolerance is no longer needed and should be revoked. (The document entitled “OPPTS Test Guideline 860.1000 Supplement: Guidance on Constructing Maximum Reasonably Balanced Diets (MRBD)” is available at http://www.regulations.gov under docket ID number EPA-HQ-OPPT-2009-0155). Consequently, EPA is proposing to revoke the tolerances for rice, straw in 40 CFR 180.142(a) for 2,4-D; 180.169(a)(1) for carbaryl; 180.205(a) for paraquat; 180.274(a) for propanil; 180.288(a) for 2-(thiocyanomethylthio)benzothiazole; 180.293(a)(1) for endothall; 180.301(a) for carboxin; 180.355(a)(1) for bentazon; 180.361(a) for pendimethalin; 180.377(a)(2) for diflubenzuron; 180.383(a) for sodium salt of acifluorfen; 180.399(a)(1) for iprodione; 180.401(a) for thiobencarb; 180.417(a)(1) for triclopyr; 180.418(a)(2) for zeta-cypermethrin; 180.425(a) for clomazone; 180.434(a) for propiconazole; 180.438(a)(1) for lambda-cyhalothrin; 180.438(a)(2) for gamma-cyhalothrin and its epimer; 180.439(a) for thifensulfuron methyl; 180.445(a) for bensulfuron methyl; 180.447(a)(2) for imazethapyr; 180.451(a) for tribenuron methyl; 180.463(a)(1) for quinclorac; 180.473(a) for glufosinate ammonium; 180.479(a)(2) for halosulfuron-methyl; 180.484(a) for flutolanil; 180.507(a)(1) for azoxystrobin; 180.517(a) for fipronil; 180.555(a) for trifloxystrobin; 180.570(a)(2) for isoxadifen-ethyl; 180.577(a) for bispyribac-sodium; 180.605(a) for penoxsulam; and 180.625(a) for orthosulfamuron.

2. Amitraz. There have been no active U.S. registrations for use of amitraz on cotton since May 3, 2006 and the manufacturer, Arysta Life Sciences, notified EPA in July 2011 that it no longer is interested in supporting the tolerance for amitraz use on cotton, undelinted seed for import purposes. The tolerance is no longer needed and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerance for amitraz in 40 CFR 180.287(a) on cotton, undelinted seed.

3. Carfentrazone-ethyl. Because the first cotton processing study submitted by the registrant was conducted at 1.0x the seasonal application rate and resulted in residues less than the Limit of Quantitation (LOQ) of 0.05 ppm, EPA requested that a processing study be conducted at an application rate sufficient to generate residues in/on cottonseed and set tolerances for cotton hulls, meal, and oil using theoretical processing factors and the highest average cottonseed field trial residue. Based on an available second processing study conducted at 2.0x the seasonal application rate, which showed that carfentrazone-ethyl residues of concern in or on cottonseed were detected (Limit of Detection 0.015-0.020 ppm) but were less than the LOQ of 0.05 ppm, EPA determined that the tolerances for carfentrazone-ethyl residues of concern are no longer needed on cottonseed hull, meal, and oil and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerances for carfentrazone-ethyl in 40 CFR 180.515(a) on cotton, hulls; cotton, meal; and cotton, refined oil.

Because uses supported by the carfentrazone-ethyl tolerance for caneberry subgroup 13A at 0.1 ppm are covered by the tolerance for berry group 13 at 0.10 ppm, there is no longer any need for the separate subgroup tolerance and therefore it should be revoked. In addition, because EPA no longer considers rice straw to be a significant feed item, the tolerance is no longer needed and should be revoked. Consequently, EPA is proposing to revoke the tolerances for carfentrazone-ethyl in 40 CFR 180.515(a) on caneberry subgroup 13A and rice, straw.

4. Ethephon. Because the last product label amendment has been completed which limits the use of ethephon to cucumbers grown for seed production only and restricts the harvesting of treated cucumbers for human or animal consumption, a food tolerance for ethephon is no longer needed and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerance for ethephon in 40 CFR 180.300(a) on cucumber.

5. Malathion. EPA is proposing to modify the plant tolerance commodity levels for certain existing malathion tolerances in 40 CFR 180.111(a)(1) based on available field trial data and product label changes. Currently, those tolerances are established for residues of malathion. However, as stated in the 2009 amended RED for malathion, based on available plant metabolism data, EPA determined that the residues of concern in plants consist of malathion and its metabolite, malaoxon, and therefore the tolerance expression for plant commodities should be revised. Because EPA is not proposing to modify all of the plant commodity tolerances in 40 CFR 180.111(a)(1) at this time, EPA is proposing that those specific tolerances which it is proposing to modify herein be redesignated from 40 CFR 180.111(a)(1) to 40 CFR 180.111(a)(2), where tolerances are currently established for malathion and its metabolite malaoxon. Also, in accordance with current Agency practice to describe more clearly the measurement and scope or coverage of the tolerances, EPA is proposing to revise the introductory text containing the tolerance expression in 40 CFR 180.111(a)(2) to read as set out in the proposed regulatory text at the end of this document.

Based on product label changes to their use patterns and available field trial data that showed malathion residues of concern in or on apricot as high as <0.65 ppm, avocado as high as <0.08 ppm, fig as high as <0.41 ppm, grape as high as 2.78 ppm, macadamia nut as high as <0.10 ppm, melon as high as <0.85 ppm, mushroom as high as <0.10 ppm, okra as high as <2.23 ppm, bulb onion as high as <0.60 ppm, green onion as high as 4.88 ppm, peach as high as <3.64 ppm, pear as high as 2.23 ppm, peppermint and spearmint tops as high as 1.43 ppm, EPA determined that the tolerances should be decreased from 8 to 1.0 ppm, 8 to 0.2 ppm, 8 to 1.0 ppm, 8 to 4.0, 1 to 0.2 ppm, 8 to 1.0 ppm, 8 to 0.2 ppm, 8 to 3.0 ppm, 8 to 1.0, 8 to 6.0, 8 to 6.0 ppm, 8 to 3.0 ppm, 8 to 2.0 ppm, and 8 to 2.0 ppm, respectively. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for apricot, fig, melon, and onion, bulb to 1.0 ppm, avocado, mushroom, and nut, macadamia to 0.2 ppm, grape to 4.0 ppm, okra and pear to 3.0 ppm, onion, green and peach to 6.0 ppm, peppermint, tops and spearmint, tops to 2.0 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Available residue data may be translated by the Agency from one commodity to another related commodity where appropriate (e.g., have similar use patterns). Based on their use patterns and the translation of apricot data to nectarine, bulb onion data to garlic, and green onion data to leek and shallot (data previously mentioned herein), EPA determined that the tolerances for nectarine, bulb garlic, leek, and bulb shallot should be decreased from 8 to 1.0 ppm, 8 to 1.0 ppm, 8 to 6 ppm, and 8 to 6 ppm, respectively. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for nectarine and garlic, bulb to 1.0 ppm, and leek and shallot, bulb to 6.0 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and the translation of melon data (data previously mentioned herein) to pumpkin and winter squash, EPA determined that the tolerances for pumpkin and winter squash should each be decreased from 8 to 1.0 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for pumpkin; and squash, winter; each to 1.0 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on its use pattern and available field trial data that showed malathion residues of concern in or on asparagus were as high as 1.38 ppm, EPA determined that the tolerance should be decreased from 8 to 2.0 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.111(a)(1) for asparagus to 2.0 ppm, and redesignate it to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on blackberry as high as 3.99 ppm and raspberry as high as 4.96 ppm, EPA determined that the tolerances should be decreased from 8 to 6 ppm and 8 to 6 ppm, respectively. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for blackberry and raspberry to 6 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and the translation of blackberry and/or raspberry data (data previously mentioned herein) to boysenberry, dewberry, gooseberry, and loganberry, EPA determined that the tolerances for boysenberry, dewberry, gooseberry, and loganberry should each be decreased from 8 to 6 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for boysenberry, dewberry, gooseberry, and loganberry, each to 6 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on turnip greens as high as 3.40 ppm and turnip roots as high as <0.18 ppm, EPA determined that the tolerances should be decreased from 8 to 4.0 ppm and 8 to 0.5 ppm, respectively. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for turnip, greens to 4.0 ppm and turnip, roots to 0.5 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and the translation of turnip greens data (data previously mentioned herein) to garden beet tops and salsify tops, EPA determined that the tolerances for beet, garden, tops and salsify, tops; should each be decreased from 8 to 4.0 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for beet, garden, tops; and salsify, tops; each to 4.0 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and the translation of the turnip root data (data previously mentioned herein) to garden beet roots, horseradish, parsnip, radish, rutabaga, and salsify roots, EPA determined that the tolerances for beet, garden, roots; horseradish; parsnip; radish; rutabaga; and salsify, roots; should each be decreased from 8 to 0.5 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for beet, garden, roots, horseradish; parsnip; radish; rutabaga; and salsify, roots; each to 0.5 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on potatoes as high as 0.05 ppm, and translation of that data to chayote roots and sweet potato roots, EPA determined that the tolerances should be decreased from 8 to 0.1 ppm for potato; chayote, roots; and sweet potato, roots. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for potato; chayote, roots; and sweet potato, roots; each to 0.1 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and cucumber data which showed malathion residues of concern as high as <0.11 ppm, and translation of that data to chayote fruit and summer squash, EPA determined that the tolerances for chayote fruit and summer squash should be decreased from 8 to 0.2 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for chayote, fruit; and squash, summer; each to 0.2 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and tomato data, which showed malathion residues of concern as high as 1.54 ppm, and translation of that data to eggplant, EPA determined that the tolerance for eggplant should be decreased from 8 to 2.0 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.111(a)(1) for eggplant to 2.0 ppm, and redesignate it to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on alfalfa and clover forage as high as 110.12 ppm and 120.14 ppm, respectively, and translation of that data to trefoil forage, EPA determined that the tolerances should be decreased from 135 to 125 ppm for alfalfa, clover, and trefoil forage. Also, based on its use pattern and available field trial data that showed malathion residues of concern in or on clover hay as high as 120.50 ppm, EPA determined that the tolerance should be decreased from 135 to 125 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for alfalfa, forage; clover, forage; trefoil, forage; and clover, hay; each to 125 ppm; and redesignate them to 40 CFR 180.111(a)(2).

Based on its use pattern and available storage stability data that showed malathion residues of concern in or on carrots were as high as 0.54 ppm, EPA determined that the tolerance should be decreased from 8 to 1 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.111(a)(1) for carrot, roots to 1 ppm, and redesignate it to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on mango were as high as <0.12 ppm, passionfruit were as high as <0.12 ppm, pineapple were as high as 0.17 ppm, and walnuts were non-detectable (<0.10 ppm), EPA determined that the tolerances should each be decreased from 8 to 0.2 ppm. Also, based on their use patterns and the translation of walnut data to pecan, EPA determined that the pecan tolerance should be decreased from 8 to 0.2 ppm. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for mango, passionfruit, pecan, pineapple, and walnut, each to 0.2 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and available field trial data that showed malathion residues of concern in or on oranges as high as 1.91 ppm, and translation of that data to grapefruit, kumquat, lemon, lime, and tangerine, EPA determined that the tolerances should be decreased from 8 to 4.0 ppm for orange, grapefruit, kumquat, lemon, lime, and tangerine. Therefore, EPA is proposing to decrease the tolerances in 40 CFR 180.111(a)(1) for orange, grapefruit, kumquat, lemon, lime, and tangerine; each to 4.0 ppm, and redesignate them to 40 CFR 180.111(a)(2).

Based on their use patterns and dry bean data, which showed malathion residues of concern as high as 0.74 ppm, and translation of that data to lupin seed, EPA determined that the tolerance for lupin seed should be decreased from 8 to 2.0 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.111(a)(1) for lupin, seed to 2.0 ppm, and redesignate it to 40 CFR 180.111(a)(2).

Based on its use pattern and available field trial data that showed malathion residues of concern in or on peppers as high as 0.09 ppm, EPA determined that the tolerance should be decreased from 8 to 0.5 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.111(a)(1) for pepper to 0.5 ppm, and redesignate it to 40 CFR 180.111(a)(2).

6. Mancozeb. Based on label revisions and available field trial data that showed mancozeb residues as high as 0.738 ppm in or on wheat grain and 27.1 ppm in or on wheat straw, the Agency determined that the tolerances should be set at 1 ppm for wheat grain and 30 ppm for wheat straw, which when converted to carbon disulfide equivalents using a rounded conversion factor of 0.6X (based on relative molecular weights) is calculated as 0.6 ppm for grain and 18 ppm for straw. The Agency determined that data for wheat should be translated to barley, oat, and rye because of similar use patterns. In order to harmonize with Codex, EPA is proposing in 40 CFR 180.176(a) to decrease the tolerances on barley, grain; oat, grain; rye, grain; and wheat, grain; each to 1 ppm and to maintain the tolerance for wheat, straw at 25 ppm (as recommended in the RED) and therefore, also maintain the straw tolerances at 25 ppm for barley, oat, and rye.

Based on available processing data that showed mancozeb residues concentrated 2X in flour and 4X in wheat bran and shorts, and a highest average field trial (HAFT) of <0.748 ppm on the raw agricultural commodity (RAC), the Agency expected residues as high as 1.5 ppm for flour and 2.99 ppm for bran, and the Agency determined that the tolerances should be set at 2.0 ppm for flour and 3.0 ppm for bran and shorts, which when converted to carbon disulfide equivalents using a rounded conversion factor of 0.6X is calculated as 1.2 ppm for flour and 2 ppm for bran and shorts. The Agency determined that data for wheat should be translated to barley, oat, and rye because of similar use patterns. Therefore, EPA is proposing in 40 CFR 180.176(a) to decrease the tolerances on wheat, flour; barley, flour; and oat, flour; each to 1.2 ppm and also to establish a tolerance on rye, flour at 1.2 ppm; and decrease the tolerances on wheat, bran; barley, bran; rye, bran; and wheat, shorts; each to 2 ppm.

Based on sufficient data for wheat hay, where the field trial data showed mancozeb residues as high as 46.4 ppm, the Agency determined that the tolerance, in carbon disulfide equivalents, should be set at 30 ppm. No additional data for wheat hay have been received since the RED that would change that conclusion. (Although the Mancozeb RED stated that additional data for wheat hay were needed to establish a tolerance value, the Agency had received sufficient data prior to the RED to establish a tolerance value and no additional data are needed). The Agency determined that data for wheat hay should be translated to barley and oats because of similar use patterns. Therefore, EPA is proposing to establish tolerances in 40 CFR 180.176(a) on wheat, hay; barley hay; and oat, hay at 30 ppm.

Based on label revision and available field trial data that showed mancozeb residues were as high as 12.6 ppm in or on papaya, the Agency determined that the tolerance should be set at 15 ppm, which when converted to carbon disulfide equivalents using a rounded conversion factor of 0.6X is calculated as 9 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.176(a) on papaya to 9 ppm.

Based on available field trial data that showed mancozeb residues were not detectable (<0.05 ppm) in or on field corn grain, the Agency determined that the tolerance should be set at 0.1 ppm, which when converted to carbon disulfide equivalents using a rounded conversion factor of 0.6X is calculated as 0.06 ppm. Therefore, EPA is proposing to decrease the tolerance in 40 CFR 180.176(a) on corn, field, grain to 0.06 ppm.

7. Mepiquat. Based on available data at an exaggerated feeding level of 7X the Maximum Theoretical Dietary Burden (MTDB) which showed mepiquat residues of concern in cattle meat, fat, and milk were below the limit of detection (<0.05 ppm), EPA determined that there is no reasonable expectation of finite mepiquat residues of concern in livestock meat and fat. The tolerances are no longer needed under 40 CFR 180.6(a)(3) and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerances for mepiquat chloride in 40 CFR 180.384(a)(2) on cattle, fat; cattle, meat; goat, fat; goat, meat; hog, fat; hog, meat; horse, fat; horse, meat; sheep, fat; and sheep, meat.

In addition, EPA is proposing to combine the tolerance expressions for mepiquat in 40 CFR 180.384(a)(1) and mepiquat chloride in 40 CFR 180.384(a)(2) by measuring only mepiquat in newly designated 40 CFR 180.384(a). Also, in order to describe more clearly the measurement of residues for tolerances and coverage of metabolites and degradates of a pesticide by the tolerances, EPA is proposing to revise the introductory text in newly designated 40 CFR 180.384(a) to read as set out in the proposed regulatory text at the end of this document.

8. Oxamyl. In the Federal Register of January 11, 2012 (77 FR 1684) (FRL-9328-2), EPA announced its receipt of voluntary requests by registrants to amend certain pesticide registrations, including amendments to terminate the last oxamyl registrations for soybean use. In the Federal Register of April 11, 2012 (77 FR 21767) (FRL-9342-2), EPA published a cancellation order in follow-up to the January 11, 2012 notice and granted the requested amendments to terminate use of oxamyl on soybeans. Because the soybean use has not been included on oxamyl product labels since 2006, no existing stocks period is needed. Therefore, EPA is proposing to revoke the tolerance for oxamyl in 40 CFR 180.303(a) on soybean, seed.

9. Propetamphos. In the Federal Register of August 18, 2010 (75 FR 51053) (FRL-8840-3), EPA announced its receipt of voluntary requests by the registrant to cancel certain propetamphos registrations, which would terminate the last propetamphos products registered for use in the United States. In the Federal Register of December 30, 2010 (75 FR 82387) (FRL-8854-8), EPA published a cancellation order in follow-up to the August 18, 2010 notice which granted the requested product cancellations and prohibited the registrant from selling or distributing its propetamphos technical product after March 30, 2012 and end-use product until stocks are exhausted as described. Persons other than the registrant are allowed to sell, distribute, and use existing stocks of the end-use product until supplies are exhausted. EPA believes that existing stocks have been exhausted. Therefore, EPA is proposing to revoke the sole tolerance for propetamphos in 40 CFR 180.541, on food and feed commodities, and remove that section in its entirety.

10. Quizalofop ethyl. Because EPA no longer considers soybean soapstock to be a significant livestock feed item, the tolerance for quizalofop ethyl residues of concern is no longer needed and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerance for quizalofop ethyl in 40 CFR 180.441(a)(1) on soybean, soapstock.

11. Spinosad. The existing tolerance for spinosad on coriander leaves was translated from the tolerance for vegetable, leafy, except brassica, group 4 at 8.0 ppm. The 2009 Calendar Year Pesticide Data Program (PDP) summary, available at http://www.ams.usda.gov/AMSv1.0/science, reported that spinosad residues were detected in two cilantro samples out of 184 samples. Residues ranged from 0.016 to 0.030 ppm. Because fresh coriander leaves are included in herb subgroup 19A, fresh and residues on coriander leaves do not exceed the herb subgroup 19A, fresh tolerance of 3.0 ppm, there is no longer any need for the separate tolerance on coriander leaves at 8.0 and therefore it should be revoked. Consequently, EPA is proposing to revoke the tolerance for spinosad in 40 CFR 180.495(a) on coriander, leaves.

12. Spiroxamine. In the Federal Register of September 7, 2011 (76 FR 55385) (FRL-8887-1), EPA announced its receipt of voluntary requests by registrants to cancel certain pesticide registrations, including the last registrations for use of spiroxamine on hops. In the Federal Register of May 23, 2012 (77 FR 30526) (FRL-9347-3), EPA published a cancellation order in follow-up to the September 7, 2011 notice and granted the requested product cancellations, including ones which terminated use of spiroxamine on hops. The cancellation order allowed registrants to sell and distribute existing stocks until May 23, 2013. EPA believes that existing stocks (with hops use) will be exhausted 1 year after May 23, 2013; i.e., by May 23, 2014. Therefore, EPA is proposing to revoke the tolerance for spiroxamine in 40 CFR 180.602(a) on hop, dried cones.

13. Thiram. Currently, tolerances for thiram are established in 40 CFR 180.132(a) for residues of the fungicide thiram (tetramethyl thiuram disulfide). Thiram is a member of the class of dithiocarbamates, whose decomposition releases a common moiety, carbon disulfide. In order to allow harmonization of U.S. tolerances with Codex MRLs, the Agency determined that for the purpose of tolerance enforcement, residues of thiram should be calculated as carbon disulfide. Therefore, EPA is proposing to revise the introductory text containing the tolerance expression in 40 CFR 180.132(a) to thiram residues convertible to and expressed in terms of the degradate carbon disulfide and also revise the tolerance expression in accordance with current Agency practice to describe more clearly the measurement and scope or coverage of the tolerances, to read as set out in the proposed regulatory text at the end of this document. Based on the revising of the tolerance expression to carbon disulfide, EPA determined that the thiram tolerances for apple and strawberry should be decreased from 7.0 to 5 ppm and 20 to 13 ppm, respectively, and the tolerance for banana should be increased from 0.80 to 2.0 ppm in order to harmonize with Codex. Also, in order to harmonize with Codex, EPA is maintaining the tolerance for peach at 7.0 ppm. (The Agency's determination is available in the docket of this proposed rule). Therefore, EPA is proposing in 40 CFR 180.132(a) to decrease the tolerances for apple to 5 ppm and strawberry to 13 ppm, and increase the tolerance for banana to 2.0 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.

14. Triflumizole. Because EPA no longer considers dry apple pomace, grape pomace, and grape raisin waste to be significant livestock feed items, the associated tolerances for triflumizole residues of concern are no longer needed and therefore should be revoked. Also, based on apple processing data that showed triflumizole residues of concern do not concentrate in wet apple pomace, the tolerance is no longer needed and should be revoked. Consequently, EPA is proposing to revoke the tolerances for triflumizole in 40 CFR 180.476(a)(1) on apple, dry pomace; apple, wet pomace; grape, dried pomace; grape, raisin, waste; and grape, wet pomace.

Also, because there are no longer any registered triflumizole uses associated with feed items for poultry and swine, tolerances for triflumizole residues of concern on swine and poultry are no longer needed and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerances for triflumizole in 40 CFR 180.476(a)(2) on hog, fat; hog, meat; hog, meat byproducts; poultry, fat; poultry, meat; poultry, meat byproducts; and egg.

Based on available data at an exaggerated feeding level of 6X the MTDB which showed triflumizole residues of concern to be below the limit of quantitation (<0.05 ppm) and projected residues at 1X the MTDB in cattle meat and milk to be well below the limit of quantitation (<0.05 ppm), EPA determined that there is no reasonable expectation of finite triflumizole residues of concern in livestock meat and milk. These tolerances are no longer needed under 40 CFR 180.6(a)(3) and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerances for triflumizole in 40 CFR 180.476(a)(2) on cattle, meat; goat, meat; horse, meat; sheep, meat; and milk.

In addition, based on available data at an exaggerated feeding level at 6X the MTDB which projected residues at 1X the MTDB in cattle fat, kidney, and liver to be <0.05 ppm, <0.10 ppm, and <0.10 ppm, respectively, EPA determined that the existing tolerances should be decreased. Consequently, EPA is proposing to decrease the tolerances for triflumizole in 40 CFR 180.476(a)(2) from 0.5 to 0.10 ppm on cattle, fat; goat, fat; horse, fat; and sheep, fat; and from 0.5 to 0.20 ppm on cattle, meat byproducts; goat, meat byproducts; horse, meat byproducts; and sheep, meat byproducts.

B. What is the agency's authority for taking this action?

A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under FFDCA section 402(a), 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce, 21 U.S.C. 331(a). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA, 7 U.S.C. 136 et seq. Food-use pesticides not registered in the United States must have tolerances in order for commodities treated with those pesticides to be imported into the United States.

EPA is proposing certain specific tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination is discussed in detail in each RED for the active ingredient. REDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs are available as provided in Unit II.A.

EPA has issued REDs for malathion and mancozeb. REDs contain the Agency's evaluation of the database for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary.

EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under FFDCA section 408, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities.

Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue.

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that:

1. Finite residues will exist in meat, milk, poultry, and/or eggs.

2. There is a reasonable expectation that finite residues will exist.

3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)).

EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this document and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities.

C. When do these actions become effective?

EPA is proposing that the actions herein become effective 6 months after the date of publication of the final rule in the Federal Register. EPA is proposing this effective date for these actions to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements of a final rule. EPA believes that treated commodities will have sufficient time for passage through the channels of trade. If you have comments regarding existing stocks and whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under SUPPLEMENTARY INFORMATION.

Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by the Food Quality Protection Act (FQPA). Under this unit, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and

2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.

III. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for carfentrazone-ethyl, mepiquat, propetamphos, quizalofop ethyl, spiroxamine, triflumizole, ethephon in or on cucumber, oxamyl in or on soybean seed, spinosad in or on coriander leaves, or total dithiocarbamates in or on barley bran, barley flour, field corn grain, oat flour, oat grain, rye bran, rye grain, wheat bran, wheat flour, and wheat, shorts.

The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including barley and wheat, each at 1 milligrams/kilogram (mg/kg). These MRLs are the same as the tolerances proposed for mancozeb in the United States.

The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including papaya at 5 mg/kg. This MRL is covered by a proposed U.S. tolerance at a higher level than the MRL. The MRL is different than the proposed U.S. tolerance for mancozeb in the United States because of differences in residue definition, use patterns, and/or good agricultural practices.

The Codex has established MRLs for malathion in or on various commodities, including onion, bulb at 1 milligrams/kilogram (mg/kg). This MRL is the same as the tolerance proposed for malathion in the United States.

The Codex has established MRLs for malathion in or on various commodities, including asparagus at 1 mg/kg and peppers at 0.1 mg/kg. These MRLs are covered by proposed U.S. tolerances at higher levels than the MRLs. These MRLs are different than the tolerances established for malathion in the United States because of differences in residue definition, use patterns, and/or good agricultural practices.

The Codex has established MRLs for malathion in or on citrus fruits at 7 mg/kg, grapes at 5 mg/kg, and turnip greens at 5 mg/kg. These MRLs are different than the tolerances proposed for malathion in the United States because of differences in residue definition, use patterns, and/or good agricultural practices.

The Codex has established a MRL for amitraz in or on various commodities, including cotton seed at 0.5 mg/kg. This MRL is covered by the current U.S. tolerance at a higher level than the MRL, but would no longer be covered due to the proposed revocation of the U.S. tolerance.

The Codex has established MRLs for total dithiocarbamates determined as carbon disulfide in or on various commodities, including banana at 2 mg/kg, peach at 7 mg/kg, and strawberry at 5 mg/kg. The MRLs for banana and peach are the same as the U.S. tolerances proposed for thiram in the United States. The MRL for strawberry is covered by a proposed U.S. tolerance at a higher level than the MRL. The MRL for strawberry is different than the tolerance proposed for thiram in the United States because of differences in use patterns, and/or good agricultural practices.

IV. Statutory and Executive Order Reviews

In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.). Nor does it require any special considerations as required by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed rule will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this proposed rule). Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change the EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

(2) Tolerances are established for residues of the insecticide malathion, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only the sum of malathion (O,O-dimethyl dithiophosphate of diethyl mercaptosuccinate), and its metabolite malaoxon (O,O-dimethyl thiophosphate of diethyl mercaptosuccinate), in or on the commodity.

(a) General. Tolerances are established for residues of the fungicide thiram, tetramethyl thiuram disulfide, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only those thiram residues convertible to and expressed in terms of the degradate carbon disulfide, in or on the commodity.

CommodityParts per millionExpiration/

revocation

date

Apple5NoneBanana 12.03/31/15Peach7.0NoneStrawberry13None1 There are no U.S. registrations as of September 23, 2009.§ 180.142 [Amended]4. In § 180.142, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.169 [Amended]5. In § 180.169, remove the entry for “Rice, straw” from the table in paragraph (a)(1).6. In § 180.176, revise the table in paragraph (a) to read as follows:§ 180.176 Mancozeb; tolerances for residues.

(a) General. Tolerances are established for residues of the plant growth regulator mepiquat, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only mepiquat, N,N-dimethylpiperidinium, in or on the commodity.

CommodityParts per

million

Cattle, meat byproducts 0.1Cotton, gin byproducts 6.0Cotton, undelinted seed 2.0Goat, meat byproducts 0.1Grape 1.0Grape, raisin 5.0Hog, meat byproducts 0.1Horse, meat byproducts 0.1Sheep, meat byproducts 0.1§ 180.399 [Amended]20. In § 180.399, remove the entry for “Rice, straw” from the table in paragraph (a)(1).§ 180.401 [Amended]21. In § 180.401, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.417 [Amended]22. In § 180.417, remove the entry for “Rice, straw” from the table in paragraph (a)(1).§ 180.418 [Amended]23. In § 180.418, remove the entry for “Rice, straw” from the table in paragraph (a)(2).§ 180.425 [Amended]24. In § 180.425, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.434 [Amended]25. In § 180.434, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.438 [Amended]26. In § 180.438, remove the entry for “Rice, straw” from the table in paragraph (a)(1) and from the table in paragraph (a)(2).§ 180.439 [Amended]27. In § 180.439, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.441 [Amended]28. In § 180.441, remove the entry for “Soybean, soapstock” from the table in paragraph (a)(1).§ 180.445 [Amended]29. In § 180.445, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.447 [Amended]30. In § 180.447, remove the entry for “Rice, straw” from the table in paragraph (a)(2).§ 180.451 [Amended]31. In § 180.451, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.463 [Amended]32. In § 180.463, remove the entry for “Rice, straw” from the table in paragraph (a)(1).§ 180.473 [Amended]33. In § 180.473, remove the entry for “Rice, straw” from the table in paragraph (a).34. In § 180.476, revise the table in paragraph (a)(1) and revise the table in paragraph (a)(2) to read as follows:§ 180.476 Triflumizole; tolerances for residues.

Cattle, fat0.10Cattle, meat byproducts0.20Goat, fat0.10Goat, meat byproducts0.20Horse, fat0.10Horse, meat byproducts0.20Sheep, fat0.10Sheep, meat byproducts0.20§ 180.479 [Amended]35. In § 180.479, remove the entry for “Rice, straw” from the table in paragraph (a)(2).§ 180.484 [Amended]36. In § 180.484, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.495 [Amended]37. In § 180.495, remove the entry for “Coriander, leaves” from the table in paragraph (a).§ 180.507 [Amended]38. In § 180.507, remove the entry for “Rice, straw” from the table in paragraph (a)(1).§ 180.515 [Amended]39. In § 180.515, remove the entries for “Caneberry subgroup 13A,” “Cotton, hulls,” “Cotton, meal,” “Cotton, refined oil” and “Rice, straw” from the table in paragraph (a).§ 180.517 [Amended]40. In § 180.517, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.541 [Removed]41. Remove § 180.541.§ 180.555 [Amended]42. In § 180.555, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.570 [Amended]43. In § 180.570, remove the entry for “Rice, straw” from the table in paragraph (a)(2).§ 180.577 [Amended]44. In § 180.577, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.602 [Amended]45. In § 180.602, remove the entry for “Hop, dried cones” from the table in paragraph (a).§ 180.605 [Amended]46. In § 180.605, remove the entry for “Rice, straw” from the table in paragraph (a).§ 180.625 [Amended]47. In § 180.625, remove the entry for “Rice, straw” from the table in paragraph (a).[FR Doc. 2014-16063 Filed 7-10-14; 8:45 am]BILLING CODE 6560-50-PDEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration50 CFR Parts 223 and 224RIN 0648-XD267Endangered and Threatened Wildlife; 90-Day Finding on a Petition To Identify the Central North Pacific Population of Humpback Whale as a Distinct Population Segment (DPS) and Delist the DPS Under the Endangered Species Act; Extension of Public Comment PeriodAGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Extension of public comment period.

SUMMARY:

We, NMFS, announce the extension of the public comment period on our June 26, 2014, 90-day finding on a petition to designate the Central North Pacific population of humpback whale (Megaptera novaeangliae) as a Distinct Population Segment (DPS) and delist the DPS under the Endangered Species Act (ESA). As part of that finding, we solicited scientific and commercial information about the status of this population and announced a 30-day comment period to end on July 28, 2014. Today, we extend the public comment period to August 27, 2014. Comments previously submitted need not be resubmitted, as they will be fully considered in the agency's final determination.

DATES:

The deadline for receipt of comments is extended from July 28, 2014 until August 27, 2014.

ADDRESSES:

You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2014-0051, by any of the following methods:

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Interested persons may obtain a copy of the petition online at the NMFS Alaska Region Web site: http://alaskafisheries.noaa.gov/protectedresources/whales/humpback/.

On June 26, 2014 we published a proposed rule (79 FR 36281) announcing a positive 90-day finding on a petition to designate the Central North Pacific population of humpback whale as a Distinct Population Segment (DPS) and delist the DPS under the Endangered Species Act (ESA). In that notice we also solicited comments and information from the public to inform the continued development of our humpback whale status review to determine whether the Central North Pacific humpback whale population constitutes a DPS under the ESA, and if so, the risk of extinction to this DPS.

We have received requests to extend the public comment period by 30 days to be consistent with previous 60-day comment periods for other listing and delisting actions under the ESA. Given the complexity of the issues raised in the petition, this extension would provide the public with additional time to gather relevant information and adequately comment on the validity of the petitioned action in a meaningful and constructive manner. We considered these requests and concluded that a 30-day extension should allow sufficient time for responders to submit comments without significantly delaying the completion of the status review. We are therefore extending the close of the public comment period from July 28, 2014, to August 27, 2014. Although we have extended the public comment period, we are unable to extend the deadline for completing the status review. As such, we urge members of the public to submit their comments as soon as possible to allow us more time to review and incorporate the submitted information where appropriate.

Authority:

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Advance notice of proposed rulemaking; notification of control date; request for comments.

SUMMARY:

NMFS announces that persons who bring a U.S. purse seine or longline vessel into the fisheries in the western and central Pacific Ocean (WCPO) after July 11, 2014 (“control date”), or who, after the control date, expand the carrying capacity or well volume of a purse seine vessel already in the fishery, are not guaranteed the future participation of that vessel in the fishery if NMFS decides to limit the number of fishing vessels in the fishery or, with respect to purse seine vessels, the fishing capacity of the fleet or of vessels in the fleet in terms of carrying capacity or well volume. Furthermore, with respect to purse seine vessels, even if the future participation of such a vessel is allowed, the vessel's future allowable level of fishing effort and/or catch might be limited if NMFS decides to limit vessels' individual or collective allowable levels of fishing effort or catch. NMFS is considering the need to undertake such actions to implement provisions of a conservation and management measure adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission).

DATES:

Comments must be submitted in writing by August 11, 2014.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2014-0067, by either of the following methods:

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, might not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name and address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Tom Graham, NMFS PIRO, 808-725-5032.

SUPPLEMENTARY INFORMATION:

Background on the U.S. WCPO Purse Seine and Longline Fisheries

Participation by U.S. flagged purse seine and longline vessels in the WCPO fisheries is contingent on fishing authorizations granted under several statutes.

The U.S. WCPO purse seine fishery is regulated in part under the authority of the South Pacific Tuna Act of 1988 (16 U.S.C. 973-973r; SPTA) through implementing regulations at 50 CFR part 300, subpart D. The terms of the treaty between the United States and 16 Members of the Pacific Islands Forum Fisheries Agency (Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America and its annexes, schedules, and implementing agreements, as amended; hereafter called “the Treaty”) are implemented by the SPTA and the regulations cited above. The Treaty provides access to and generally governs U.S. fishing vessels operating in the Treaty Area, which comprises much of the WCPO, including all or portions of the exclusive economic zones of the 16 Pacific Island Parties to the Treaty (PIPs) through a licensing system. License applications are first submitted to NMFS, which are approved or disapproved according to procedures established at 50 CFR 300.32. NMFS forwards approved applications to the Pacific Islands Forum Fisheries Agency (FFA, located in the Solomon Islands), which issues the licenses and acts as the Treaty administrator on behalf of the PIPs.

In addition to being governed by the Treaty and the SPTA, the U.S. WCPO purse seine fishery is subject to the authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq.). The WCPFC Implementation Act authorizes the Secretary of Commerce to implement the provisions of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention) and the decisions of the Commission, which was established under the Convention. The area of competence of the Commission, or the Convention Area, includes the majority of the Treaty Area. As a Party to the Convention and a Member of the Commission, the United States is obligated to implement the decisions of the Commission. The decisions of the Commission can be found on its Web site (http://www.wcpfc.int/). Pursuant to the Convention and the decisions of the Commission, a U.S. fishing vessel must have a high seas fishing permit (see below) with a valid WCPFC Area Endorsement, issued by NMFS under 50 CFR 300.212, to be used for commercial fishing for highly migratory species on the high seas in the Convention Area.

The U.S. WCPO purse seine fishery is also subject to the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.; MSA), particularly with respect to the operation of the fishery within the U.S. exclusive economic zone. The fishery is also subject to the authority of the High Seas Fishing Compliance Act (16 U.S.C. 5501 et seq.), which governs the conduct of U.S. fishing vessels on the high seas, and under which a high seas fishing permit is required for a U.S. fishing vessel to be used for commercial fishing anywhere on the high seas.

The U.S. WCPO longline fishery is regulated in part under the authority of the MSA. Longline vessels are subject to the management regime developed by the Western Pacific Fishery Management Council and established in the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region, which is implemented through regulations at 50 CFR part 665. Among other management controls, there are limited entry programs for the Hawaii and American Samoa longline fisheries, with specific limits on the numbers of fishing permits available in each of the two fisheries. Longline vessels are also subject to the authority of the WCPFC Implementation Act. Like U.S. purse seine vessels, a U.S. longline vessel must have a high seas fishing permit with a valid WCPFC Area Endorsement, issued by NMFS under 50 CFR 300.212, to be used for commercial fishing for highly migratory species on the high seas in the Convention Area.

Recent Decisions of the WCPFC

In December 2013, the Commission adopted a conservation and management measure for bigeye tuna, yellowfin tuna, and skipjack tuna (CMM 2013-01). Most of that CMM's provisions are in effect from February 4, 2014, until December 31, 2017. The CMM includes provisions specific to longline vessels and provisions specific to purse seine vessels. The CMM's longline provisions include limits on vessel numbers and limits on bigeye tuna catches. The CMM's purse seine provisions include limits on fishing effort, restrictions on the use of fish aggregating devices (FADs), catch retention requirements, observer requirements, and restrictions on vessel numbers and vessels' fishing capacity.

This advance notice of proposed rulemaking (ANPR) and control date relate to CMM 2013-01's provisions on vessel numbers (which apply to both purse seine and longline vessels) and its provisions on vessels' fishing capacity (which apply only to purse seine vessels).

Regarding purse seine vessels, CMM 2013-01 obligates certain flag States, including the United States, to limit the number of their purse seine vessels that are greater than 24 meters in length, have freezing capacity, and operate between the latitudes of 20° North and 20° South to the current level (paragraph 49 of CMM 2013-01). CMM 2013-01 also obligates certain flag States, including the United States, to ensure that purse seine vessels in their fleets are not replaced with vessels with greater carrying capacity or well volume, or that the catch or fishing effort of such vessels is not greater than that of the replaced vessels (paragraph 50 of CMM 2013-01). Notwithstanding this latter obligation, CMM 2013-01 provides for flag States to allow the replacement of purse seine vessels in their fleets with vessels for which building approval has been granted and notified to the Commission before March 1, 2014 (paragraph 50 of CMM 2013-01). These provisions for purse seine vessels do not apply to small island developing States or Participating Territories of the WCPFC, which include American Samoa, Commonwealth of the Northern Mariana Islands, and Guam.

Regarding longline vessels, CMM 2013-01 obligates certain flag States, including the United States, to limit the number of their longline vessels with freezing capacity targeting bigeye tuna to the current level (paragraph 51 of CMM 2013-01), and to limit the number of their ice-chilled longline vessels targeting bigeye tuna and landing exclusively fresh fish to the current level or to the current number of licenses available under established limited entry programs (paragraph 52 of CMM 2013-01). These provisions for longline vessels do not apply to small island developing States or Participating Territories of the WCPFC, which include American Samoa, Commonwealth of the Northern Mariana Islands, and Guam.

Establishment of Control Date and Possible Rulemaking

One purpose of this ANPR is to notify persons that if they attempt to bring a vessel into the U.S. WCPO purse seine fishery or longline fishery after the control date of July 11, 2014, or if, after the control date, they expand the carrying capacity or well volume of a purse seine vessel already in the fishery, there is no assurance of being granted future participation of that vessel in the fishery if NMFS decides to limit the number of fishing vessels in the fishery, or, with respect to purse seine vessels, the fishing capacity of the fleet or of vessels in the fleet in terms of carrying capacity or well volume. Furthermore, with respect to purse seine vessels, even if the participation of such a vessel in the future is granted, the vessel's future allowable level of fishing effort and/or catch might be limited if NMFS decides to limit vessels' individual or collective allowable levels of fishing effort or catch beyond the limits already in place. For the purse seine fishery, any of these limits would likely apply only to vessels more than 24 meters in length with freezing capacity (all of the 40 currently SPTT-licensed purse seine vessels fall in this category). For the longline fishery, any limit on vessel numbers would likely apply only to vessels that NMFS determines target bigeye tuna.

A second purpose of this ANPR is to solicit comments and input on possible ways to establish limits on purse seine fishing capacity as required under paragraphs 49 and 50 of CMM 2013-01, specifically on vessels' individual or collective carrying capacity, well volume, fishing effort, and/or catch levels. NMFS is especially interested in comments on whether it would be preferable to place limits on carrying capacity, well volume, fishing effort, or catch levels; on possible measures of carrying capacity and well volume that could be used for the purpose of such limits; and on possible methods for determining and verifying such measures.

Establishment of this control date does not commit NMFS to any particular action or, if action is taken, any particular criteria for limiting vessel numbers in the U.S. WCPFC purse seine or longline fisheries or for limiting fishing capacity or fishing effort or catch levels in the U.S. WCPO purse seine fishery: NMFS might decide to continue to rely on existing regulatory controls, such as, for purse seine vessels, the limits on the number of available licenses under SPTA regulations, and for longline vessels, the limits on the number of available permits under MSA regulations. For example, NMFS has determined that the United States is currently in full compliance with the longline vessel number limits of CMM 2013-01 by virtue of the Hawaii longline limited entry program. As long as the number of permits available under that program does not increase—and NMFS does not anticipate any such increase in the foreseeable future—the United States would remain in compliance with the longline vessel number limits of CMM 2013-01.

Vessels are not guaranteed future participation in the U.S. WCPO purse seine or longline fisheries, regardless of their participation before or after the control date. Furthermore, NMFS might adopt a different control date or it might take an action that does not involve a control date.

If NMFS proceeds with a proposed rule, the scope of the rule might be expanded to implement additional provisions of CMM 2013-01.

Classification

This advance notice of proposed rulemaking has been determined to be not significant for the purposes of Executive Order 12866.

Pursuant to the Federal Advisory Committee Act, notice is hereby given of cancellation of the meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA) on Wednesday, July 9, 2014 in the Horizon Room of the Ronald Reagan Building at 1300 Pennsylvania Ave. NW., Washington, DC, which was published in the Federal Register on June 25, 2014, 79 FR 35995.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.

Comments regarding this information collection received by August 11, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC, 20503. Commentors are encouraged to submit their comments to OMB via email to: OIRA_Submission@omb.eop.gov or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8681.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

30-day Federal Register NoticeForest Service

Title: National Forest System Land Management Planning—Generic Collection

OMB Control Number: 0596-NEW

Summary Of Collection: Section 6 of the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.) and implementing regulations 36 CFR part 219 (2012 Planning Rule) direct the U.S. Forest Service to revise land management plans for each National Forest System unit every 15 years, and to continuously monitor conditions to inform interim or subsequent planning actions. The planning process requires public participation and involvement. As such, the agency will invite public participation broadly to facilitate public comments and submission of information that members of the public find to be relevant.

Need And Use Of The Information: To ensure that the Agency can be inclusive of, and responsive to, customer/stakeholder concerns during the development, assessment, and monitoring of National Forest System Land Management Plans, the agency will use a variety of methods, such as but not limited to, customer/stakeholder comment cards, focus groups, small discussion groups and surveys. Feedback and input will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communications, training, or changes in operations might improve delivery of products or services such as improved Land Management Planning or the implementation thereof.

Description Of Respondents: Individuals or households; business or other for-profit; not-for-profit institutions; and State, Local, Tribal Government

The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

Needs and Uses: This request is for a revision and extension of a currently approved information collection.

This information collection describes special permits and certificates issued to participants in the Pacific halibut subsistence fishery in waters off the coast of Alaska and any appeals resulting from denials. The National Marine Fisheries Service (NMFS) designed the permits to work in conjunction with other halibut harvest assessment measures. Subsistence fishing for halibut has occurred for many years among the Alaska Native people and non-Native people. Special permits are initiated in response to the concerns of Native and community groups regarding increased restrictions in International Pacific Halibut Commission Area 2C and include Community Harvest Permits, Ceremonial Permits, and Educational Permits.

A Community Harvest Permit allows the community or Alaska Native tribe to appoint one or more individuals from its respective community or tribe to harvest subsistence halibut from a single vessel under reduced gear and harvest restrictions. Ceremonial and Educational Permits are available exclusively to Alaska Native tribes. Eligible Alaska Native tribes may appoint only one Ceremonial Permit Coordinator per tribe for Ceremonial Permits or one authorized Instructor per tribe for Educational Permits.

Except for enrolled students fishing under a valid Educational Permit, special permits require persons fishing under them to also possess a Subsistence Halibut Registration Certificate (SHARC), formerly approved under OMB Control No. 0648-0460, now to be included in this information collection, which identifies those persons who are currently eligible for subsistence halibut fishing. Each of the instruments is designed to minimize the reporting burden on subsistence halibut fishermen while retrieving essential information. Along with the SHARC registration, gear-marking of subsistence halibut vessels has also been transferred from OMB Control No. 0648-0460.

Affected Public: Individuals or households.

Frequency: Annually and on occasion.

Respondent's Obligation: Required to obtain or maintain benefits.

This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA_Submission@omb.eop.gov or faxed to (202) 395-5806.

Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (“the Department”) is conducting the tenth administrative review of the antidumping duty order on certain frozen fish fillets (“fish fillets”) from the Socialist Republic of Vietnam (“Vietnam”).1 The Department preliminarily determines that the Hung Vuong Group (“HVG”) 2 sold subject merchandise in the United States at prices below normal value (“NV”) during the period of review (“POR”) August 1, 2012, through July 31, 2013. With respect to Anvifish Joint Stock Company (“Anvifish”), this exporter failed to establish that it is separate from the Vietnam-wide entity. As a result, the Vietnam-wide entity is now under review.3 We are preliminarily applying adverse facts available (“AFA”) to the Vietnam-wide entity because an element of the entity, Anvifish, failed to act to the best of its ability in complying with the Department's request for information in this review within the established deadlines, significantly impeded the proceeding, and provided information that cannot be verified. If these preliminary results are adopted in the final results, the Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.

2 The Department previously found that An Giang Fisheries Import & Export Joint Stock Company (“Agifish”) is a member of the Hung Vuong Group, which also includes Asia Pangasius Company Limited, Europe Joint Stock Company, Hung Vuong Joint Stock Company, Hung Vuong Mascato Company Limited, Hung Vuong—Vinh Long Co., Ltd., and Hung Vuong—Sa Dec Co., Ltd. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative Review and New Shipper Review; 2011-2012, 79 FR 19053 (April 7, 2014).

3 On November 4, 2013, the Department announced a change in practice with respect to the conditional review of the NME entity. See Antidumping Proceedings; Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Proceedings, 78 FR 65963 (Nov. 4, 2013). This review initiated before this change in practice became effective; therefore, the Department's new practice does not apply to this segment.

On October 2, 2013, the Department initiated the tenth administrative review of the antidumping duty order on fish fillets from Vietnam for the period August 1, 2012, through July 31, 2013.4 As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1 through October 16, 2013.5 On March 26, 2014, the Department partially extended the deadline for issuing the preliminary results by 30 days.6 On June 11, 2014, the Department partially extended the deadline for issuing the preliminary results by 14 days.7 The revised deadline for the preliminary results of this administrative is now July 2, 2014.

4See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 FR 60834 (October 2, 2013) (“Initiation Notice”). On November 8, 2013, the Department published a second notice to list two companies that were inadvertently omitted from the Initiation Notice. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 FR 67104 (November 8, 2013).

5See Memorandum for the Record from Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (October 18, 2013).

The product covered by the order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species Pangasius bocourti, Pangasius hypophthalmus (also known as Pangasius pangasius), and Pangasius micronemus. These products are classifiable under tariff article codes 0304.29.6033, 0304.62.0020, 0305.59.0000, 0305.59.4000, 1604.19.2000, 1604.19.2100, 1604.19.3000, 1604.19.3100, 1604.19.4000, 1604.19.4100, 1604.19.5000, 1604.19.5100, 1604.19.6100, and 1604.19.8100 (Frozen Fish Fillets of the species Pangasius including basa and tra) of the Harmonized Tariff Schedule of the United States (“HTSUS”).8 Although the HTSUS subheading is provided for convenience and Customs purposes, our written description of the scope of the order is dispositive.9

8 Until July 1, 2004, these products were classifiable under HTSUS 0304.20.6030 (Frozen Catfish Fillets), 0304.20.6096 (Frozen Fish Fillets, NESOI), 0304.20.6043 (Frozen Freshwater Fish Fillets), and 0304.20.6057 (Frozen Sole Fillets). Until February 1, 2007, these products were classifiable under HTSUS 0304.20.6033 (Frozen Fish Fillets of the species Pangasius, including basa and tra). On March 2, 2011, the Department added two HTSUS numbers at the request of U.S. Customs and Border Protection (“CBP”): 1604.19.2000 and 1604.19.3000. On January 30, 2012, the Department added eight HTSUS numbers at the request of CBP: 0304.62.0020, 0305.59.0000, 1604.19.2100, 1604.19.3100, 1604.19.4100, 1604.19.5100, 1604.19.6100, and 1604.19.8100.

9See “Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Decision Memorandum for the Preliminary Results of the 2012-2013 Antidumping Duty Administrative Review,” dated concurrently with and hereby adopted by this notice (“Preliminary Decision Memorandum”), for a complete description of the Scope of the Order.

Preliminary Determination of No Shipments

On December 11, 2013, the following companies filed no-shipment certifications indicating that they did not export subject merchandise to the United States during the POR: An Giang Agriculture and Food Import-Export Joint Stock Company; Golden Quality Seafood Corporation; Hoa Phat Seafood Import-Export and Processing J.S.C.; and To Chau Joint Stock Company. Based on the certifications submitted by the above companies, and our analysis of the CBP information, we preliminarily determine that An Giang Agriculture and Food Import-Export Joint Stock Company, Golden Quality Seafood Corporation, Hoa Phat Seafood Import-Export and Processing J.S.C., and To Chau Joint Stock Company 10 did not have any reviewable transactions during the POR. The Department finds that consistent with its practice in non-market economy (“NME”) cases, it is appropriate not to rescind the review in part in this circumstance but, rather, to complete the review with respect to the above named companies and issue appropriate instructions to CBP based on the final results of the review.11

The Department conducted this review in accordance with sections 751(a)(1)(B) and 751(a)(2)(A) of the Tariff Act of 1930, as amended (“the Act”). Constructed export prices and export prices have been calculated in accordance with section 772 of the Act. Because Vietnam is an NME within the meaning of section 771(18) of the Act, NV has been calculated in accordance with section 773(c) of the Act.

For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at http://iaaccess.trade.gov, and is available to all parties in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

Preliminary Results of Review

The Department preliminarily determines that the following weighted-average dumping margins exist for the period August 1, 2012, through July 31, 2013:

The Department will disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

12 In the third administrative review of this order, the Department determined that it would calculate per-unit assessment and cash deposit rates for all future reviews. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review and Partial Rescission, 73 FR 15479 (March 24, 2008).

14 This rate is also applicable to QVD Dong Thap Food Co., Ltd. (“Dong Thap”) and Thuan Hung Co., Ltd. (“THUFICO”). In the second review of this order, the Department found QVD, Dong Thap and THUFICO to be a single entity, and because there has been no evidence submitted on the record of this review that calls this determination into question, we continue to find these companies to be part of a single entity. Therefore, we will assign this rate to the companies in the single entity. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty Administrative Review, 71 FR 53387 (September 11, 2006).

15 The Vietnam-wide rate includes the following companies which are under review, but which did not submit a separate rate application or certification: East Seafoods Limited Liability Company and Anvifish Joint Stock Company.

Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review in the Federal Register.16 Rebuttals to case briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the time limit for filing case briefs.17 Parties who submit arguments are requested to submit with the argument (a) a statement of the issue, (b) a brief summary of the argument, and (c) a table of authorities.18 Parties submitting briefs should do so pursuant to the Department's electronic filing system, IA ACCESS.

16See 19 CFR 351.309(c)(1)(ii).

17See 19 CFR 351.309(d)(1)-(2).

18See 19 CFR 351.309(c)(2), (d)(2).

Any interested party may request a hearing within 30 days of publication of this notice.19 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.20

19See 19 CFR 351.310(c).

20See 19 CFR 351.310(d).

The Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the Federal Register, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.21 The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.

21See 19 CFR 351.212(b).

For any individually examined respondent whose weighted average dumping margin is above de minimis (i.e., 0.50 percent) in the final results of this review, the Department will calculate importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of sales, in accordance with 19 CFR 351.212(b)(1). Where an importer- (or customer-) specific ad valorem rate is greater than de minimis, the Department will instruct CBP to collect the appropriate duties at the time of liquidation.22 Where either a respondent's weighted average dumping margin is zero or de minimis, or an importer- (or customer-) specific ad valorem is zero or de minimis, the Department will instruct CBP to liquidate appropriate entries without regard to antidumping duties.23 For the respondents that were not selected for individual examination in this administrative review and that qualified for a separate rate, the assessment rate will be the rate calculated for HVG.24 We intend to instruct CBP to liquidate entries containing subject merchandise exported by the Vietnam-wide entity at the Vietnam-wide rate.

22See 19 CFR 351.212(b)(1).

23See 19 CFR 351.106(c)(2).

24See Preliminary Decision Memorandum.

The Department refined its assessment practice in NME cases. Pursuant to this refinement in practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during the administrative review, the Department will instruct CBP to liquidate such entries at the Vietnam-wide rate. Additionally, if the Department determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (i.e., at that exporter's rate) will be liquidated at the Vietnam-wide rate.25

25 For a full discussion of this practice, see Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011).

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, then zero cash deposit will be required); (2) for previously investigated or reviewed Vietnam and non-Vietnam exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all Vietnam exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the Vietnam -wide entity; and (4) for all non-Vietnam exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnam exporter that supplied that non-Vietnam exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This preliminary determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) finds that revocation of the antidumping duty order on diamond sawblades and parts thereof (diamond sawblades) from the People's Republic of China (the PRC) would be likely to lead to continuation or recurrence of dumping as indicated in the “Final Results of Sunset Review” section of this notice.

In accordance with 19 CFR 351.218(d)(1)(i) and (ii), the Department received notices of intent to participate in this sunset review from Diamond Sawblades Manufacturers Coalition and Husqvarna Construction Products North America (collectively, the domestic interested parties) within 15 days after the date of publication of the Initiation Notice.1 The domestic interested parties claimed interested party status under section 771(9)(A), (C), and (F) of the Tariff Act of 1930, as amended (the Act).

The Department received adequate substantive responses to the Initiation Notice from the domestic interested parties within the 30-day period specified in 19 CFR 351.218(d)(3)(i). The Department received no substantive response from any respondent interested parties. In accordance with section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of the antidumping duty order on diamond sawblades from the PRC.

Scope of the Order

The merchandise subject to the order is diamond sawblades. The diamond sawblades subject to the order are currently classifiable under subheadings 8202 to 8206 of the Harmonized Tariff Schedule of the United States (HTSUS), and may also enter under 6804.21.00. While the HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Issues and Decision Memorandum.2

2See the Memorandum from Deputy Assistant Secretary Christian Marsh to Acting Assistant Secretary Ronald K. Lorentzen entitled “Issues and Decision Memorandum for the Final Results of Expedited First Sunset Review of the Antidumping Duty Order on Diamond Sawblades and Parts Thereof from the People's Republic of China” dated concurrently with and hereby adopted by this notice (Issues and Decision Memorandum).

Analysis of Comments Received

All issues raised in this review are addressed in the Issues and Decision Memorandum, including the likelihood of continuation or recurrence of dumping in the event of revocation and the magnitude of dumping margins likely to prevail if the order was revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in the Issues and Decision Memorandum, which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at http://iaaccess.trade.gov and to all parties in the Central Records Unit in Room 7046 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

Final Results of Sunset Review

The Department determines that revocation of the antidumping duty order on diamond sawblades from the PRC would be likely to lead to continuation or recurrence of dumping at weighted-average margins up to 164.09 percent.

Notification to Interested Parties

This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

The Department is issuing and publishing the final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.221(c)(5)(ii).

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on solid urea from the Russian Federation (Russia). The period of review (POR) is July 1, 2012, through June 30, 2013. The review covers one producer/exporter of the subject merchandise, MCC EuroChem (EuroChem). We preliminarily find that EuroChem has not sold subject merchandise at less than normal value during the POR. Interested parties are invited to comment on these preliminary results.

The merchandise subject to the order is solid urea. The product is currently classified under the Harmonized Tariff Schedules of the United States (HTSUS) item number 3102.10.00.00. The HTSUS subheading is provided for convenience and customs purposes. A full description of the scope of the order is contained in the memorandum from Gary Taverman, Senior Advisor for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Solid Urea from the Russian Federation” dated concurrently with this notice (Preliminary Decision Memorandum), which is hereby adopted by this notice. The written description is dispositive.

The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). Access to IA ACCESS is available to registered users at http://iaaccess.trade.gov, and it is available to all parties in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/index.html. A list of the topics discussed in the Preliminary Decision Memorandum is attached as an Appendix to this notice. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

Methodology

The Department conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions, see Preliminary Decision Memorandum.

Preliminary Results of the Review

As a result of this review, we preliminarily determine that a dumping margin of 0.00 percent exists for EuroChem for the period July 1, 2012, through June 30, 2013.

Disclosure and Public Comment

We intend to disclose the calculations performed to parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.1 Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.2

1See 19 CFR 351.309(d).

2Id., and 19 CFR 351.303 (for general filing requirements).

Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.3 Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs.

3See 19 CFR 351.310(c).

The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

Upon completion of the administrative review, the Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. If EuroChem's weighted-average dumping margin is not zero or de minimis in the final results of this review, we will calculate importer-specific assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for an importer's examined sales and the total entered value of such sales in accordance with 19 CFR 351.212(b)(1). If EuroChem's weighted-average dumping margin continues to be zero or de minimis in the final results of review, we will instruct CBP not to assess duties on any of its entries in accordance with the Final Modification for Reviews, i.e., “{w}here the weighted-average margin of dumping for the exporter is determined to be zero or de minimis, no antidumping duties will be assessed.” 4

The Department clarified its “automatic assessment” regulation on May 6, 2003.5 This clarification will apply to entries of subject merchandise during the POR produced by EuroChem for which it did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate of 64.93 percent 6 if there is no rate for the intermediate company(ies) involved in the transaction.

6 The all-others rate established in Urea From the Union of Soviet Socialist Republics; Final Determination of Sales at Less Than Fair Value, 52 FR 19557 (May 26, 1987).

We intend to issue instructions to CBP 15 days after publication of the final results of this review.

Cash Deposit Requirements

The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of solid urea from Russia entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for EuroChem will be the rate established in the final results of this administrative review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation but the manufacturer is, the cash deposit rate will be the rate established for the manufacturer of the merchandise for the most recently completed segment of this proceeding; (4) the cash deposit rate for all other manufacturers or exporters will continue to be 64.93 percent.7 These cash deposit requirements, when imposed, shall remain in effect until further notice.

7See Id.

Notification to Importers

This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

The items of discussion in the committee and advisory panel's agenda are: The Risk Policy Working Group will continue the development of a risk policy to serve as guidance for ABC (acceptable biological catch) control rules and annual catch limits (ACLs) for Council-managed species. They will develop a Risk Policy Statement, to be reviewed by the Council's Scientific and Statistical Committee (SSC) in August and approved by the Council at its September 2014 meeting. Also on the agenda will be the review and discussion on baseline conditions related to overfishing definitions, ABC control rules, and harvest control rules in Council-managed FMPs. They will discuss the next steps for applying the Risk Policy Statement across Council-managed FMPs and address other business as necessary.

Although non-emergency issues not contained in this agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see ADDRESSES) at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The Pacific Fishery Management Council's (Pacific Council) Highly Migratory Species Management Team (HMSMT) will hold a webinar, which is open to the public.

DATES:

The HMSMT will hold the webinar on Tuesday, July 29, 2014 from 9 a.m. to noon, Pacific Time.

ADDRESSES:

To attend the webinar, visit http://www.joinwebinar.com. Enter the Webinar ID: 493-503-175, and your name and email address (required). Once you have joined the webinar, choose either your computer's audio or select “Use Telephone.” If you do not select “Use Telephone” you will be connected to audio using your computer's microphone and speakers (VolP). It is recommended that you use a computer headset, as GoToMeeting allows you to listen to the meeting using your computer headset and speakers. If you do not have a headset and speakers, you may use your telephone for the audio portion of the meeting by dialing this TOLL number 1-480-297-0021 (not a toll-free number); phone audio access code 861-856-225; audio phone pin shown after joining the webinar. System requirements for PC-based attendees: Required: Windows® 7, Vista, or XP; for Mac®-based attendees: Required: Mac OS® X 10.5 or newer; and for mobile attendees: Required: iPhone®, iPad®, AndroidTM phone or Android tablet (See the GoToMeeting Webinar Apps). You may also send an email to Mr. Kris Kleinschmidt or contact him at 503-820-2280 for technical assistance. A listening station will also be provided at the Pacific Council office.

The HMSMT will discuss the development of alternatives and analyses for issues to be addressed as part of the HMS biennial harvest specifications and management measures process. Of the issues identified at the June Pacific Council meeting, the Pacific Council assigned highest priority to reducing recreational catch of Pacific bluefin tuna and identifying take caps (“hard caps”) for selected protected species (marine mammals and sea turtles) for the California drift gillnet fishery. The HMSMT may also discuss exempted fishing permit review and monitoring requirements for proposed management measures. The HMSMT will report on their work at the September 12-17, 2014, Council meeting in Spokane, WA.

Public comments during the webinar will be received from attendees at the discretion of the HMSMT Chair.

Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

Special Accommodations

The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the meeting date.

For meeting materials see folder named “Reef Fish AP meeting 07-29-2014” on Gulf Council file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's Web site and click on the FTP link in the lower left of the Council Web site (http://www.gulfcouncil.org). The username and password are both “gulfguest”.

The Agenda is subject to change, and the latest version will be posted on the Council's file server, which can be accessed by going to the Council Web site at http://www.gulfcouncil.org and clicking on FTP Server under Quick Links. The meetings will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

Note:

The times and sequence specified in this agenda are subject to change.

Committee for Purchase From People Who Are Blind or Severely Disabled.

ACTION:

Proposed Addition to and Deletions from the Procurement List.

SUMMARY:

The Committee is proposing to add a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products previously furnished by such agencies.

DATES:

Comments Must Be Received On Or Before: 8/11/2014.

ADDRESSES:

Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202-4149.

This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

Addition

If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the service listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.

The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:

Committee for Purchase From People Who Are Blind or Severely Disabled.

ACTION:

Additions to and Deletions from the Procurement List.

SUMMARY:

This action adds products to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.

DATES:

Effective Date: 8/11/2014.

ADDRESSES:

Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202-4149.

On 5/16/2014 (79 FR 28490-28491) and 6/6/2014 (79 FR 32716-32718), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.

2. The action will result in authorizing small entities to furnish the products to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products proposed for addition to the Procurement List.

End of Certification

Accordingly, the following products are added to the Procurement List:

On 6/6/2014 (79 FR 32716-32718), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

2. The action may result in authorizing small entities to furnish the products to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products deleted from the Procurement List.

End of Certification

Accordingly, the following products are deleted from the Procurement List:

To raise awareness of the dangers of carbon monoxide in the home, the Consumer Product Safety Commission (CPSC) announces a poster contest for children in grades six, seven, and eight under section 105 of the America COMPETES Reauthorization Act of 2011, 15 U.S.C. 3719 (America COMPETES Act).

DATES:

Entries will be accepted from July 14, 2014 until 11:59 p.m. EDT on February 27, 2015. CPSC expects to complete judging on or about May 1, 2015 and will award prizes soon thereafter.

CPSC is charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency's jurisdiction. CPSC has issued more than 13,000 consumer product recalls since the agency's creation in 1973.

To raise awareness of the danger of carbon monoxide (CO) gas, CPSC will administer a nationwide CO safety poster contest to help alert consumers, and children in particular, to the dangers of CO in the home.

Contest Requirements and Rules

1. Subject of the Contest. A key mission of the CPSC is to empower consumers with safety information. This contest seeks to help raise awareness about the dangers of CO in the home.

Potential topics include:

• how to recognize CO exposure and CO exposure symptoms;

• facts about CO: you cannot see it or smell it;

• what steps to take to protect against CO poisoning; and

• how to install and test a CO alarm.

2. Eligibility. To be eligible to participate in CPSC's CO Poster Contest and win a prize, a contestant must:

• be an individual who is a citizen or permanent resident of the United States;

• be in, or about to enter, the sixth, seventh, or eighth grade at the time of submission;

• not be a federal employee acting in the scope of the employee's employment;

• not be a child of a CPSC employee;

• not submit more than one poster;

• provide a completed and signed Contest Submission and Parental Consent Form (available on: www.cpsc.gov/COcontest);

• have complied with all requirements of this Notice, the official contest rules posted at: www.cpsc.gov/COcontest/, and all requirements of the America COMPETES Act.

The rules in this Notice supplement the rules on the www.cpsc.gov/COcontest/ Web site. If there is a conflict between any requirement stated on www.cpsc.gov/COcontest/ and the provisions of this Notice, the provisions of this Notice will govern. Entries must comply with form, content, eligibility, and other requirements set forth in this Notice and on the www.cpsc.gov/COcontest/ Web site.

3. How to Enter. Contestants may submit entries between July 14, 2014 and February 27, 2015. Only one poster per contestant may be submitted; all entries must be received by CPSC not later than 11:59 p.m. EDT, February 27, 2015.

• Contestant must create the poster without assistance from others. The poster must not have been submitted to any prior CPSC poster contest or published previously. The poster must not contain any elements that violate a third party's copyright, trademark, or other intellectual property rights.

• Entries must consist of one piece of original artwork (poster) and a completed Contest Submission and Parental Consent Form submitted through the contest Web site at: www.cpsc.gov/COcontest. Uploaded files should be in the form of either a PDF or JPG, and each file must be no larger than one megabyte.

• Teachers are encouraged to submit poster entries for their students. However, to be eligible for a prize, each student must satisfy contest requirements, and each entry must include a completed and signed Contest Submission and Parental Consent Form.

• Once a poster is entered, a contestant cannot make any changes or alterations to the poster. CPSC expects to complete judging on or about May 1, 2015.

• CPSC will not consider contest entries on topics other than carbon monoxide (CO).

• By submitting an entry (including the completed and signed Contest Submission and Parental Consent Form) to the contest, the contestant and the contestant's parent or guardian agrees to be bound by the contest's Official Rules. This contest is a skills-based contest. Chance plays no part in the determination of winners.

• To maintain privacy, a contestant should not put his or her full name or any personal information on the poster. CPSC will remove any identifying information on the poster.

• Sending a poster and completed Contest Submission and Parental Consent Form by the deadline constitutes “registration to participate in the competition” required by Section 105(g)(1) of the America COMPETES Act.

4. Parent or Guardian's Consent. All contestants must submit a completed Contest Submission and Parental Consent Form. On the form, parents or guardians must provide CPSC:

• permission for the contestant to enter the contest;

• an agreement that the contestant will abide by the contest rules;

• contact information to notify the parent or guardian if the contestant wins a prize;

• permission to collect, use, or disclose the contestant/child's personal information in accordance with the contest rules and applicable laws, including information necessary to issue and report any prize payments.

5. Privacy. CPSC will collect, use, and disclose the information submitted in accordance with the Privacy Act and/or E-Government Act of 2002. Information is not collected for commercial marketing.

6. Children's Online Privacy. The safety and privacy of children is CPSC's priority. CPSC complies with the Children's Online Privacy Protection Act of 1998 (COPPA) and COPPA's accompanying regulations protecting the privacy of children using the Internet.

CPSC requires verifiable parental consent via a Contest Submission and Parental Consent Form for all contestants and requires this consent before CPSC collects, uses, or discloses personal information about children under the age of 13. CPSC requires contestants to disclose the minimum amount of personal information necessary to participate in the contest. To enter the contest, CPSC only requires contestants to provide a full name, grade in school, and state of residence. CPSC will obtain full contact information about the contestant's parent or guardian, not the child contestant; contact information includes the parent or guardian's full name, address, telephone number, and email address. CPSC requires contest winners to provide a Social Security number to process prize payments. CPSC will contact a contestant only through a parent or guardian.

CPSC uses the personal information about a contestant to administer the contest. After obtaining parental consent via a Contest Submission and Parental Consent Form, CPSC will publish the contestant's poster, along with the contestant's first name, grade level, and state of residence. CPSC does not permit contestants to make any additional information publicly available and will not publish personal information about contestants beyond the information described above.

CPSC maintains reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children, as described in CPSC's Systems of Records Notice, Privacy Impact Assessment, and agency policies and directives. CPSC only discloses personal information as required by applicable laws and regulations.

Questions about these privacy policies should be directed to Patty Davis, CPSC Office of Communications at: pdavis@cpsc.gov.

At any time, a parent or guardian may review or have deleted the contestant's personal information from CPSC records and may refuse to permit further collection or use of the contestant's information by contacting the contest administrator at: pdavis@cpsc.gov.

7. Prizes. CPSC will award:

• three 6th grade winners, a cash award of $500 each

• three 7th grade winners, a cash award of $500 each

• three 8th grade winners, a cash award of $500 each

• one winner, chosen by public vote on CPSC's Web site, a cash award of $500

• one grand prize winner picked from all winners, a cash award of $1,000.

One poster may win multiple prizes. Winners shall be responsible for paying any applicable federal, state, or local taxes. CPSC will pay prize money directly to the winner or winners. Each winner must provide CPSC with sufficient information to issue payments in accordance with CPSC fiscal policy and issue an Internal Revenue Service Form 1099. CPSC will not issue prize payments without sufficient information to issue payments in compliance with CPSC fiscal policy and federal law. Winners may not transfer, assign, or substitute any prize.

CPSC may print, reproduce, or display winning posters publicly in print, online on the CPSC's Web site, and online on other safety partners' Web sites.

8. Judges. The posters will be judged by a qualified panel selected by CPSC at CPSC's sole discretion. CPSC retains the right to add or remove judges at any time before the winners are announced. Contest judges may include people from outside CPSC, including individuals from the private sector. The panel of judges will select the winning posters based on the criteria identified below. Judges have the right to withdraw from judging the contest entries without advance notice.

Judges may not:

• have personal or financial interests in, or be an employee, officer, director, or agent of, any entity that is a registered contestant in this contest;

• have a familial or financial relationship with an individual who is a registered contestant; or

• have any matter pending before CPSC or represent anyone in any matter pending before CPSC.

Specific tasks related to the judging process may be delegated to CPSC employees or employees of a collaborating agency. Judges shall have the authority to disregard any minor error in an entry that does not create any substantial benefit or detriment to any contestant. Decisions made by the judges are final.

9. Judging Criteria.

• clarity of CO safety message

• visual appeal of poster

• design originality.

10. Contest Subject to Applicable Law. The contest is subject to all applicable federal laws and regulations. By submitting an entry to the contest, the contestant and the contestant's parent or guardian agrees to be bound by these Official Rules and administrative decisions, which are final and binding in all matters relating to the contest. Eligibility for a contest prize is contingent upon fulfilling all of the requirements of the Official Rules. The final award of prizes is contingent upon the availability of appropriations.

11. No CPSC Logo. The poster must not use CPSC's logo or official seal and must not claim federal government endorsement.

12. Copyright/Original Work. Each contestant, through the contestant's parent or guardian, represents and warrants that the contestant is the sole author and